[Federal Register Volume 72, Number 144 (Friday, July 27, 2007)]
[Proposed Rules]
[Pages 41258-41284]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-3674]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU98


Endangered and Threatened Wildlife and Plants; Revised Critical 
Habitat for Astragalus magdalenae var. peirsonii

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; notice of availability of the draft economic 
analysis; notice of public hearings.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
revise currently designated critical habitat for Astragalus magdalenae 
var. peirsonii (Peirson's milk-vetch) pursuant to the Endangered 
Species Act of 1973, as amended (Act). In total, approximately 16,108 
acres (ac) (6,519 hectares (ha)) in Imperial County, California, fall 
within the boundaries of the proposed revised critical habitat 
designation. Lands being proposed as critical habitat are under Federal 
(15,857 ac (6,418 ha)), private (240 ac (97 ha)), and State (11 ac (4 
ha)) ownership.
    Section 4 of the Act requires us to consider the economic and other 
relevant impacts of specifying any area as critical habitat. We have 
conducted an analysis of the economic impacts of designating the 
aforementioned areas as critical habitat for Astragalus magdalenae var. 
peirsonii, and are announcing the availability of the draft economic 
analysis for public review. We hereby solicit data and comments from 
the public on all aspects of this revised proposal, including data on 
the economic and other impacts of the designation.
    We are also announcing that public hearings will be held on both 
the proposed critical habitat rule and the draft economic analysis.

DATES: We will accept comments from all interested parties until 
September 25, 2007. The public hearings will take place on August 23, 
2007, from 1 p.m. to 3 p.m. and from 6 p.m. to 8 p.m. at the Carlsbad 
Fish and Wildlife Office in Carlsbad, California (see ADDRESSESS).

ADDRESSES: Public Hearings. The public hearings will be held at the 
Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, 
California, 92011.
    Comments. If you wish to comment on the proposed rule and/or the 
draft economic analysis, you may submit your comments and materials, 
identified by RIN 1018-AU98, by any of the following methods:
    (1) You may send comments by electronic mail (e-mail) to 
[email protected]. Include ``RIN 1018-AU98'' in the subject line.
    (2) You may fax your comments to Jim Bartel, Field Supervisor, 
Carlsbad Fish and Wildlife Office at 760-431-5901.
    (3) You may mail or hand-deliver your written comments and 
information to Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife 
Office at the address above.
    (4) You may submit your comments at the Federal eRulemaking Portal, 
http://www.regulations.gov. Follow the instructions for submitting 
comments.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Carlsbad Fish and Wildlife Office at the above address 
(telephone 760-431-9440). Copies of the draft economic analysis are 
available for downloading from the Internet at http://www.fws.gov/carlsbad/ or by contacting the Carlsbad Fish and Wildlife Office 
directly at the above phone number or address.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad 
Fish and Wildlife Office, at the address listed under ADDRESSES 
(telephone 760-431-9440; facsimile 760-431-5901). Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339, 24 hours a day, 7 
days a week.

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed critical habitat rule and its associated draft 
economic analysis are hereby solicited. On the basis of public comment, 
during the development of the final rule we may find that areas 
proposed are not essential or are appropriate for exclusion under 
section 4(b)(2) in which case they would be removed from the final 
critical habitat designation.
    Comments particularly are sought concerning:
    (1) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Act, including 
whether the benefit of designation will outweigh any threats to the 
taxon caused by designation.
    (2) Specific information on the amount and distribution of 
Astragalus magdalenae var. peirsonii habitat, and what areas that were 
occupied at the time of listing that contain features essential for the 
conservation of the taxon should be included in the designation and 
why, and what areas that were not occupied at the time of listing are 
essential to the conservation of the taxon and why.
    (3) Additional information on the specific physical and biological 
features (primary constituent elements) that are essential to the 
conservation of Astragalus magdalenae var. peirsonii (see ``Primary 
Constituent Elements'' section of this proposed rule for more details).
    (4) Land use designations and current or planned activities in the 
subject areas

[[Page 41259]]

and their possible impacts on proposed critical habitat.
    (5) Information on how many of the State and local environmental 
protection measures referenced in the draft economic analysis were 
adopted largely as a result of the listing of Astragalus magdalenae 
var. peirsonii, and how many were either already in place or enacted 
for other reasons.
    (6) Whether the draft economic analysis identifies all State and 
local costs attributable to the revised proposed critical habitat 
designation, and information on any costs that have been inadvertently 
overlooked.
    (7) Whether the draft economic analysis makes appropriate 
assumptions regarding current practices and likely regulatory changes 
imposed as a result of the designation of critical habitat.
    (8) Whether the draft economic analysis correctly assesses the 
effect on regional costs associated with land use controls that derive 
from the designation of critical habitat.
    (9) Whether the economic analysis indicated potentially 
disproportionate impacts to any areas included in the proposed 
designation. Based on this information, we may consider excluding 
portions of these areas from the final designation per our discretion 
under section 4(b)(2) of the Act.
    (10) Whether the economic analysis appropriately identifies all 
costs that could result from the designation, in particular, any 
impacts on small entities or families; and whether it is appropriate 
that the analysis does not include the cost of project modifications 
that are the result of informal consultation only.
    (11) Whether the economic analysis appropriately identifies the 
benefits that could result from the designation.
    (12) Whether there is information about areas that could be used as 
substitutes for the economic activities planned in critical habitat 
areas that would offset the costs and allow for the conservation of 
critical habitat areas.
    (13) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    If you wish to comment on the proposed rule and/or the draft 
economic analysis, you may submit your comments and materials by any 
one of several methods (see ADDRESSES section). Please submit e-mail 
comments to [email protected]. Please include ``Attn: RIN 1018-
AU98'' in your e-mail subject line and your name and return address in 
the body of your message. If you do not receive a confirmation from the 
system that we have received your message, contact us directly by 
calling our Carlsbad Fish and Wildlife Office at phone number 760-431-
9440. Please note that comments must be received by the date specified 
in DATES in order to be considered.
    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

Background

    This proposed rule addresses revised critical habitat for 
Astragalus magdalenae var. peirsonii. For additional information on the 
taxonomy, biology, and ecology of this taxon, refer to the final rule 
listing the taxon as threatened, published in the Federal Register on 
October 6, 1998 (63 FR 53596), or the proposed and final rules 
designating critical habitat for this taxon published in the Federal 
Register on August 5, 2003 (68 FR 46143), and on August 4, 2004 (69 FR 
47330), respectively. It is our intention to discuss only those topics 
directly relevant to the revised designation of critical habitat in 
this proposed rule.
    Astragalus magdalenae var. peirsonii is an erect to spreading, 
herbaceous member of the Fabaceae (legume family) (Barneby 1959, p. 
879; 1964, p. 862) that occurs on bowls, swales, and slopes of intact, 
active windblown sand dunes of the Algodones Dunes of Imperial County, 
California and the northeastern Estado de Baja California and Gran 
Desierto of northwestern Sonora, Mexico (Felger 2000, p. 300; 
Spellenberg 1993, p. 598; Willoughby 2005a, p. 2). Please refer to the 
``Primary Constituent Elements'' section below for additional 
discussion on habitat requirements of this taxon. Plants may reach 8 to 
27 inches (in) (20 to 70 centimeters (cm)) in height and develop tap 
roots (Barneby 1964, pp. 863-864) that penetrate deeply to the moister 
sand and that anchor plants in the shifting sand dunes. The root crown 
is often exposed by wind action moving the sand away from the base of 
the plants. Seeds are enclosed in fruits or pods and are either 
dispersed locally by falling out of partly opened fruits on the parent 
plant, ``salt-shaker'' style, or are dispersed further if blown across 
the sand after falling from the parent plant. Thus seeds can be 
transported from one favorable site to another, or remain near the 
parent plant, depending on winds (Phillips et al. 2001, p. 11).
    Seeds require no pre-treatment to induce germination, but 
germination success has been shown to improve dramatically when the 
outer seed coat is scarified (e.g., scratched, chipped) (Porter et al. 
2005, p. 29). Germination appears to be more successful in the cooler 
months of the year when temperatures are less than 86 [deg]F (30 
[deg]C) (Romspert and Burk 1979, pp. 45-46). Therefore, based on our 
current understanding of the taxon's life history, sufficient rain in 
conjunction with cool temperatures and wetter-than-average fall weather 
appears to trigger germination events.
    Depending upon conditions, Astragalus magdalenae var. peirsonii is 
capable of flowering before it is one year old (Barneby 1964, p. 862; 
Romspert and Burk 1979, p. 16; Phillips et. al 2001, p. 10; Phillips 
and Kennedy 2005, p. 22). Porter et al. (2005, pp. 31-32) hypothesized 
that if rains occur early in the growing season, then flowering can 
begin in as little as 3 months after germination. If, on the other 
hand, rains (and germination) do not occur until late February, then 
flowering is delayed until the next rainy season. In dry years, 
individuals die and are not replaced by new seedlings.
    This variability in annual abundance of above-ground plants has 
caused this taxon to be considered variously as an annual (completing 
its life cycle in a year or growing season) or a perennial (living for 
more than 2 years) (Munz 1932, p. 7; Munz 1974, p. 432; Barneby 1959, 
p. 879; Barneby 1964, p. 862; Spellenberg 1993, p. 598; Willoughby 
2001, p. 21). Recent evidence has confirmed that this species is a 
short-lived perennial (Phillips et al. 2001, p. 10; Porter et al. 2005, 
pp. 31, 34). This taxon likely depends on the production of seeds in 
wetter years and the persistence of the seed bank from previous years 
to survive until appropriate conditions for germination occur again. 
Porter et al. (2005, p. 29) identified the primary dormancy mechanism 
in Astragalus magdalenae var. peirsonii as the impermeability of the 
seed coat to water and demonstrated little loss of viability in seeds 
stored for 5 years. This dormancy mechanism is consistent with species 
having a seed bank (Given 1994, p. 67). Dispersed seeds in a given year 
that do not germinate during the subsequent growing season become part 
of the soil seed bank (Given 1994, p. 67).

[[Page 41260]]

Species Distribution and Abundance

    In the United States, Astragalus magdalenae var. peirsonii is 
restricted to about 53,000 acres (ac) (21,500 hectares (ha)) in a 
narrow band running 40 miles (mi) (64 kilometers (km)) northwest to 
southeast along the western portion of the Algodones Dunes of eastern 
Imperial County, California, which is the largest sand dune field in 
North America. Astragalus magdalenae var. peirsonii has also been 
documented from the Gran Desierto of Sonora, Mexico (Felger 2000, p. 
300) from an area south and southeast of the Sierra Pinacate lava 
field, but the Service has no additional information on the size of the 
population or extent of area occupied (63 FR 53599). The taxon was 
noted from the Borrego Valley, California, by Barneby (1959, p. 879) 
but no verified, reproducing population exists (Porter et al. 2005, pp. 
9-10). Other observations from Yuma, Arizona, and San Felipe, Baja 
California, Mexico, were based on misidentified specimens (see Porter 
et al. 2005, pp. 9-10, and Phillips et al. 2001, p. 7, for detailed 
accounts).
    The Algodones Dunes are one of the largest sand dune fields in 
North America, extending about 40 mi (64 km), trending from northwest 
to southeast (Norris and Norris 1961, p. 608). Please refer to the 2003 
proposed critical habitat rule for a more detailed discussion on the 
geomorphology of the Algodones Dunes (68 FR 46143). These dunes are 
often referred to as the Imperial Sand Dunes, a designation derived 
from their inclusion in the Imperial Sand Dunes Recreation Area (ISDRA) 
established by the Bureau of Land Management (BLM). The majority of the 
Algodones Dunes is managed by BLM within 8 management areas, of which 7 
are occupied by Astragalus magdalenae var. peirsonii (Mammoth Wash, 
North Algodones Wilderness, Glamis, Gecko, Adaptive Management Area 
(AMA), Ogilby, and Buttercup). The State of California and private 
individuals own some small inholdings in the Mammoth Wash management 
area.
    The ISDRA is the most popular off-highway vehicle (OHV) area in the 
southwest United States, with a specified major focus to ensure that 
OHV recreation opportunities are continuously available while 
responding to increased need for protection of plant and animal species 
in the dunes (Willoughby 2003, pp. 1-3). As a result of a settlement 
agreement reached in 2000, the BLM agreed to establish 5 interim 
closure areas within the Algodones Dunes, temporarily closing these 
areas to OHV recreation (see Index Map in ``Rule Promulgation'' 
section). As a result of a June 3, 2005, lawsuit, these temporary 
closures are still in place (see ``Previous Federal Actions'' section 
below for more information about the 2005 lawsuit).
    The Algodones Dunes are in one of the driest and hottest regions in 
the United States. The rainfall is often described as scattered or 
patchy with amounts differing from place to place and from year to 
year, with areas to the northwest being generally dryer than those to 
the southeast (Willoughby 2001, p. 20). Romspert and Burk (1979, p. 11) 
reported average yearly rainfall during the period 1941-1970 was 2.6 in 
(66 millimeters (mm)). Average yearly rainfall between 1997 and 2002 at 
seven weather stations in the vicinity of the dunes ranged from a low 
of 0.1 in (3.3 mm) during the 2001-2002 growing season to a high of 6.1 
in (155 mm) in the 1997-1998 growing season (Willoughby 2004, p.13). 
Average yearly rainfall between 2002 and 2006 at two weather stations 
on the dunes ranged from a low of 0.2 in (5.3 mm) during the 2005-2006 
growing season to a high of 4.8 in (122 mm) during the 2004-2005 
growing season (Willoughby 2006, p.18).
    The distribution and abundance of Astragalus magdalenae var. 
peirsonii has been recorded during several ongoing survey efforts. As 
discussed in the 2004 final critical habitat rule (69 FR 47330), the 
1977 dunes-wide survey for A. m. var. peirsonii and four other rare 
psammophytic (sand-loving) scrub species (WESTEC 1977) was considered 
the most extensive survey of the Algodones Dunes conducted at that 
time. The BLM conducted rare plant surveys for 5 consecutive years from 
1998 through 2002, generally repeating the methodology used by WESTEC 
in its 1977 survey (Willoughby 2001, p. iii). Raw data from the 2001 
and 2002 surveys were provided by the BLM to the Service for use in the 
development of the 2004 final critical habitat rule. However, a written 
report of the 2001 and 2002 surveys (Willoughby 2004) was completed in 
October 2004, after the publication of the August 4, 2004, final 
critical habitat rule. As also discussed in the 2004 final critical 
habitat rule, Phillips and Kennedy (2002, 2003) conducted surveys for 
A. m. var. peirsonii from 2001 through 2003. Since publication of the 
2004 final critical habitat rule, both the BLM (Willoughby 2005a, 
2005b, 2006) and Phillips and Kennedy (2004, 2005, 2006) continued to 
conduct annual surveys for this species through 2006. Table 1 below 
summarizes all of the various survey efforts, including the number of 
sampling points or transects and the effective area surveyed by each 
effort as well as the estimated population by the survey methodology 
and the actual number of plants counted.

 Table 1.--Comparison of Survey Data Collected for Astragalus magdalenae var. peirsonii in the Algodones Dunes;
                                     Data Taken From 13 Unpublished Reports
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                                                   Number of       Estimated        Number
             Year                  Surveyor     plants counted    population        samples      Effective area
----------------------------------------------------------------------------------------------------------------
1977.........................  WESTEC.........             N/A             N/A             542  53,000 ac
1998.........................  BLM \1\........           5,064             N/A             542  53,000 ac
1999.........................  BLM \1\........             942             N/A             542  53,000 ac
2000.........................  BLM \1\........              86             N/A             542  53,000 ac
2001.........................  BLM \1\........           5,930             N/A             542  53,000 ac
2002.........................  BLM \1\........           2,297             N/A             542  53,000 ac
2001.........................  Phillips \2\...      \3\ 71,926             N/A             127  ~35,000 ac
2001.........................  Phillips \2\...          30,771             N/A              25  138 ac
2003.........................  Phillips \2\...          33,202             N/A              25  138 ac
2005.........................  Phillips \2\...          77,922     \4\ 173,328              25  138 ac
2006.........................  Phillips \2\...           1,233       \4\ 2,035              25  138 ac
2004.........................  BLM \1\........          25,798         286,374          37,169  53,000 ac
2005.........................  BLM \1\........         739,805       1,831,076         123,488  53,000 ac

[[Page 41261]]

 
2006.........................  BLM \1\........             N/A          83,451             775  53,000 ac
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(1) BLM reports cited as Willoughby; (2) Phillips reports cited as Phillips et al. or Phillips and Kennedy; (3)
  reconnaissance of unspecified area; (4) estimated population for 60 specific sample sites.

    Since different methodologies and survey effort were used by the 
BLM as compared to Phillips and Kennedy, it is difficult to compare the 
annual estimates of dunes-wide species abundance reported from the two 
different survey efforts. Early surveys conducted by WESTEC in 1977 
(WESTEC 1977) and by BLM from 1998 through 2002 (Willoughby 2001, 2004) 
incorporated a methodology [whereby plants encountered along driving 
transects were qualitatively indexed to an abundance value] and 
represented in quadrants measuring 0.45 mi on each side. Analysis of 
these coarse, dune-wide surveys could only provide relative comparisons 
of mean abundance values between years. In 2004, the BLM embarked on a 
new sampling methodology that sampled a larger portion of the dunes in 
greater detail (Willoughby 2005a, pp. 1-5). Unlike previous surveys, 
the recent BLM surveys were scientifically and statistically designed 
to estimate the standing Astragalus magdalenae var. peirsonii 
population (Willoughby 2005a, 2005b, 2006). Data were compiled in 
adjacent 25 x 25-meter (m) cells along 4-5 km transects covering the 
full length of the dunes, and all micro-habitats were sampled along 
each transect (Willoughby 2005b, pp. 1-3). Within these 25 x 25-m 
cells, surveyors noted: The total number of plants; age class of 
plants; number of seedlings; number of flowering versus non-flowering 
plants; number of plants exhibiting damage from OHVs; and the number of 
plants showing damage from other sources (Willoughby 2005b, p. 3). The 
recent BLM surveys also increased the number of sample transects to 135 
in 2004, and to 510 for the spring 2005 surveys; the increased transect 
numbers and more detailed survey methodology increased their overall 
sample count to 37,169 and 123,488, respectively (Willoughby 2005b). In 
2006, the BLM used a randomized sample of 2005 known occupied cells 
during the very dry winter and spring of 2006 to yield a population 
estimate for the 2005-2006 survey year (Willoughby 2006, p. 6). Both 
the WESTEC and BLM surveys covered an effective area of about 53,000 ac 
(21,200 ha) and encompassed all management areas containing Astragalus 
magdalenae var. peirsonii (Willoughby 2005a, p. 2).
    By comparison, Phillips et al. (2001, p. 6) counted individual 
Astragalus magdalenae var. peirsonii from 127 specific locations 
covering an unspecified area of about 35,000 ac (14,165 ha) (Phillips 
and Kennedy 2002, Appendix A). Phillips and Kennedy (2002, 2003, 2004, 
2005, 2006) then established 25 monitoring sites from these 127 
locations for their multi-year survey effort, which had an effective 
area of about 138 ac (56 ha).
    The disparity between these three survey methods and the data 
collected makes it difficult to assess status and trends of the 
Astragalus magdalenae var. peirsonii population. However, we consider 
the surveys conducted by BLM to be the most extensive and precise 
effort to determine overall population abundance and distribution for 
this species, because this effort covered an effective area of about 
53,000 ac (21,200 ha) and encompassed all management areas containing 
Astragalus magdalenae var. peirsonii. Also, the amount of data gathered 
in 2005 was the result of an exceptionally good rainfall year and 
extraordinary monitoring effort. We agree with the BLM that the 2005 
survey effort represents the best estimate to date of distribution and 
abundance of the species on the Algodones Dunes (Willoughby 2006, p. 
v). The 2005-2006 survey year was an exceptionally dry year, with no A. 
m. var. peirsonii germination reported (Willoughby 2006, p. vi).
    While direct comparison of annual estimates of Astragalus 
magdalenae var. peirsonii abundance reported by BLM and Phillips and 
Kennedy is difficult due to differences in survey methodologies and 
effort used by the surveyors, some comparisons can be made which 
illustrate the wide variation in numbers of standing individuals found 
in any given year and in any given area of the dunes depending on 
abundance and distribution of rainfall. If we compare BLM data from 
1998 with BLM 2000 data and compare Phillips and Kennedy's 2001 data 
with their 2003 data, we see the annual variation in species abundance 
at occupied sites. Along the same series of west to east transects, BLM 
counted a total of 5,064 plants in 1998, a heavy rainfall year, and 86 
plants in 2000, a low rainfall year (Willoughby 2004, p. 36). The 
record of steep decline of the cohort counted by Phillips et al. in 
2001 was tracked by Phillips and Kennedy (2002, p. 18), who reported 
that only 26 percent of the plants seen in spring of 2001 were present 
in late 2001. Phillips and Kennedy (2003, p. 12) also reported that 
only 0.26 percent of the plants counted in spring 2001 survived to 
spring 2003.
    This wide variation in numbers of standing individuals is also 
evident when comparing results of the BLM's dunes-wide surveys 
conducted in 2004, 2005, and 2006. In 2004, estimated dunes-wide 
abundance was 286,374 plants (5.5 plants/ac (13.5/ha)) (Willoughby 
2005a, p. 37). In 2005, estimated dunes-wide abundance was 1,831,076 
plants (39.8 plants/ac (86/ha)) (Willoughby 2005b, pp. 9-11). In 2006, 
estimated dunes-wide abundance was 83,451 plants (1.6 plants/ac (3.9/
ha)) (Willoughby 2006, p. vi). Differences in densities (plants per 
acre) are likely due to differences in rainfall between years. An above 
average amount of rainfall was recorded during the 2004-2005 growing 
season, resulting in the greatest abundance of plants to date, while 
the 2005-2006 growing season was considered an exceptionally dry year, 
resulting in zero reported germination. Density in 2004 may have also 
been decreased due to higher average monthly maximum temperatures 
recorded during the survey period, potentially impacting germination 
(Willoughby 2005a, p. 12).
    In any given year, Astragalus magdalenae var. peirsonii may be 
present as standing plants, as a ``soil seed bank'' in the sand dunes, 
or as plants persisting as perennial root crowns in the sand dunes. 
During any given year, the suitable habitat for A. m. var. peirsonii 
may be occupied by various combinations of these three life history 
phases. The dynamics of dune morphology, local rainfall patterns and 
amounts, and the spatial distribution of the soil seed bank contribute 
to the

[[Page 41262]]

patchy or mosaic nature of the distribution of standing plants of A. m. 
var. peirsonii. As discussed above, local rainfall patterns and amounts 
are likely to cause shifts in the proportions of these three life 
history phases.
    This species was federally listed as threatened due to threats of 
increasing habitat loss from OHV use and associated recreational 
development, destruction of plants, and lack of protection afforded the 
plant under State law (63 FR 53596). Impacts to individual plants and 
their habitat associated with OHV activities and recreation development 
continue to be the primary threat to this species in the United States. 
Please refer to the final listing rule (63 FR 53596) for a detailed 
discussion of the threats to the species and to the ``Special 
Management Considerations or Protection'' section of this proposed rule 
for a more detailed discussion on threats to this species' habitat.

Previous Federal Actions

    For more information on previous Federal actions related to the 
designation of critical habitat for Astragalus magdalenae var. 
peirsonii, refer to the final listing rule published in the Federal 
Register on October 6, 1998 (63 FR 53596), and the proposed designation 
of critical habitat for this species published in the Federal Register 
on August 5, 2003 (68 FR 46143). On August 4, 2004 (69 FR 47330), we 
designated approximately 21,836 acres (ac) (8,848 hectares (ha)) of 
land in Imperial County, California, as critical habitat for this 
species.
    On June 3, 2005, the Center for Biological Diversity, Sierra Club, 
Public Employees for Environmental Responsibility, and Desert Survivors 
filed suit against the BLM and the Service alleging, among other 
violations related to the protection of Astragalus magdalenae var. 
peirsonii and desert tortoise (Gopherus agassizii), that the Service 
did not properly consider and weigh the benefits and costs associated 
with designating critical habitat for A. m. var. peirsonii. In a 
September 25, 2006, order and injunction regarding final relief, the 
court ordered the Service to submit a new final critical habitat rule 
to the Federal Register for publication no later than February 1, 2008. 
In addition, the Court ordered that the August 4, 2004 final critical 
habitat designation remain in full force and effect pending completion 
of the new final rule, and that the August 5, 2003 proposed designation 
of critical habitat be reinstated and remain effective pending 
completion of the new final rule or the issuance of a new proposed 
critical habitat rule for A. m. peirsonii. Therefore, under the Court's 
order, this proposed rule replaces the August 5, 2003 proposed critical 
habitat designation, and the August 5, 2003 proposed rule is no longer 
in effect. All areas currently designated under the August 4, 2004 
final rule remain designated pending completion of the new final 
critical habitat rule.
    On November 30, 2005, we published a notice of 90-day finding on a 
petition to delist this species and an initiation of a status review in 
the Federal Register (70 FR 71795). Please see the notice of 90-day 
finding for a discussion of the previous Federal actions related to the 
delisting petition history of this species. We are currently completing 
a status review of Astragalus magdalenae var. peirsonii and will 
publish our 12-month finding on the delisting petition in the Federal 
Register later this year.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) The 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. Conservation, as defined under section 3 of the Act means 
to use and the use of all methods and procedures that are necessary to 
bring any endangered species or threatened species to the point at 
which the measures provided under the Act are no longer necessary.
    Critical habitat receives protection under section 7(a)(2) of the 
Act through the prohibition against destruction or adverse modification 
of critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7(a)(2) of the Act requires 
consultation on Federal actions that are likely to result in the 
destruction or adverse modification of critical habitat. The 
designation of critical habitat does not affect land ownership or 
establish a refuge, wilderness, reserve, preserve, or other 
conservation area. Such designation does not allow government or public 
access to private lands. Section 7(a)(2) of the Act is a purely 
protective measure and does not require implementation of restoration, 
recovery, or enhancement measures.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species at the time of listing must 
first have features that are essential to the conservation of the 
species. Critical habitat designations identify, to the extent known 
using the best scientific data available, habitat areas that provide 
essential life cycle needs of the species (areas on which are found the 
primary constituent elements, as defined at 50 CFR 424.12(b)).
    Occupied habitat that contains the features essential to the 
conservation of the species meets the definition of critical habitat 
only if the essential features thereon may require special management 
considerations or protection. Thus, we do not include areas where 
existing management is sufficient to conserve the species. (As 
discussed below, such areas may also be excluded from critical habitat 
under section 4(b)(2) of the Act.)
    Unoccupied areas can be designated as critical habitat. However, 
when the best available scientific data do not demonstrate that the 
conservation needs of the species require additional areas, we will not 
designate critical habitat in areas outside the geographical area 
occupied by the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, the Service's 
Policy on Information Standards Under the Endangered Species Act, 
published in the Federal Register on July 1, 1994 (59 FR 34271); 
Section 515 of the Treasury and General Government Appropriations Act 
for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658); and the associated 
Information Quality Guidelines issued by the Service provide criteria, 
establish procedures, and provide guidance to ensure that decisions 
made by the Service represent the best scientific data available. They 
require Service biologists, to the extent consistent with the Act and 
with the use of the best scientific data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat. When determining which areas are critical 
habitat, a primary source of information is generally the listing 
package for the species. Additional information sources may include the 
recovery plan for the species, articles in peer-reviewed journals, 
conservation plans developed by States and counties, scientific status 
surveys and studies, biological assessments, or other unpublished 
materials and expert opinion or personal knowledge. All information is 
used in accordance with the provisions of Section 515 of the

[[Page 41263]]

Treasury and General Government Appropriations Act for Fiscal Year 2001 
(Pub. L. 106-554; H.R. 5658) and the associated Information Quality 
Guidelines issued by the Service.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that designation of 
critical habitat may not include all of the habitat areas that may 
eventually be determined to be necessary for the recovery of the 
species. For these reasons, critical habitat designations do not signal 
that habitat outside the designation is unimportant or may not be 
required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    As required by section 4(b)(2) of the Act and regulations at 50 CFR 
424.12, we used the best scientific and commercial information 
available in determining areas that contain the features essential to 
the conservation of Astragalus magdalenae var. peirsonii, areas that 
are essential to the conservation of A. m. var. peirsonii, or both. 
This included data from unpublished research and survey reports, such 
as WESTEC (1977); Porter et al. (2005); BLM surveys conducted from 1998 
to 2006 (Willoughby 2001, 2004, 2005a, 2005b, 2006); peer-reviewed 
journal articles; site visits; and discussions with species experts. We 
are not including in this proposed critical habitat rule any areas 
outside the geographical area presently occupied by the species.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas within the geographical area 
occupied by the species at the time of listing to propose as critical 
habitat, we consider those physical and biological features (primary 
constituent elements) that are essential to the conservation of the 
species, and that may require special management considerations or 
protection. These include, but are not limited to: (1) Space for 
individual and population growth and for normal behavior; (2) food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; (3) cover or shelter; (4) sites for breeding, 
reproduction, and rearing (or development) of offspring; and (5) 
habitats that are protected from disturbance or are representative of 
the historic, geographical, and ecological distributions of a species.
    The specific primary constituent elements (PCEs) required for 
Astragalus magdalenae var. peirsonii are derived from the biological 
needs of A. m. var. peirsonii as described in the ``Background'' 
section of this proposed rule, and also in the final listing rule (63 
FR 53596) and in the ``Background'' section of the 2003 proposed 
critical habitat rule (68 FR 46143).

Space for Individual and Population Growth, Including Sites for 
Germination, Reproduction, Seed Dispersal, Seed Bank, and Pollination

    Astragalus magdalenae var. peirsonii is found on active sand dunes 
between active faces (so-called slip faces) of the dunes, in bowls, or 
on semi-stabilized shallow slopes, facing the slip-faces of active 
dunes (Porter et al. 2005, p. 14). Active sand dunes provide the space 
needed for individual and population growth, including sites for 
germination, reproduction, seed dispersal, seed bank, and pollination 
of A. m. var. peirsonii. Active sand dunes are characterized by bowls 
(hollows among the dunes), swales (low area), and slip faces (areas so 
steep that the loose sand naturally cascades downward) that run 
transverse to the primary ridge line. A. m. var. peirsonii generally 
occurs on west-facing slopes where there is relative substrate 
stability from the floor of the dune basin to beyond the ridge; the 
greatest concentrations are generally above the middle of the slope 
(WESTEC 1977, p. 75; Porter et al. 2001, pp. 12-13).
    Sand movement, dune-building, and dune migration are likely 
determined by the wind regime (Norris and Norris 1961, p. 609). Winds 
from the northwest are prevalent in the winter, while in the summer the 
winds are from the southeast (Romspert and Burk 1979, p. 11). Muhs et 
al. (1995, pp. 43-44) found, during a study of the sand source for the 
Algodones Dunes, that dominant sand-moving winds are as follows: 
Prevailing from the northwest all year at Indio, California; from the 
west or southwest all year at El Centro, California; and from the 
northwest in winter and from the southeast in summer at Yuma, Arizona. 
These winds are responsible for the local dispersal of seeds that 
either fall out of partly opened fruits or pods on the parent plant or 
that are released from fruits blown across the sand after falling from 
the parent plant (Phillips et al. 2001, p. 11).
    Seed germination patterns likely reflect the horizontal and 
vertical distribution of the seed bank in the shifting sand dunes 
(seeds will not effectively germinate if buried more than 3 in (8 cm) 
below the surface of the dune (Bowers 1996, p. 69)). As an adaptation 
to shifting sands and low soil moisture, this species has developed 
extremely long tap roots (Barneby 1964, p. 862) that penetrate deeply 
to the moister sand and that anchor the plants in the shifting dunes. 
According to Porter et al. (2005, p. 28), seedlings may have roots 
descending only 4 in (10 cm), whereas older plants (e.g., 4 years or 
older) are likely to have roots ``many meters deep.'' Seeds buried in 
the sand function as the seed bank and allow for growth when suitable 
conditions, such as adequate rainfall, scarification, and suitable sand 
depths, are met.
    Wind-driven sand appears to provide the primary mechanism for seed 
scarification (e.g., scratching or chipping of outer cover). While 
seeds require no pre-germination treatment to induce germination, 
scarification appears to significantly increase germination success. 
Porter et al. (2005, p. 29) conducted germination trials of Astragalus 
magdalenae var. peirsonii seeds collected from Algodones Dunes and 
found that, averaging over all germination trials, scarified seeds had 
99.1 percent germination whereas unscarified seeds displayed 5.3 
percent germination. In germination trials conducted by Romspert and 
Burk (1979, pp. 45-46), 92 percent or more seeds germinated within 29 
days at temperatures of 77 [deg]F (25 [deg]C) or less, and no seeds 
germinated at temperatures of 86 [deg]F (30 [deg]C) or higher. This 
observation indicates that seeds on the dunes likely germinate in the 
cooler months of the year. Porter et al. (2005, p. 29) identified the 
primary dormancy mechanism in A. m. var. peirsonii as the 
impermeability of the seed coat to water and demonstrated little loss 
of viability in seeds stored for 5 years.
    Seedlings may be generally present in suitable habitat throughout 
the dunes,

[[Page 41264]]

especially during above-normal precipitation years. In intervening dry 
years, plant numbers decrease as individuals die and are not replaced 
by new seedlings. Porter (et al. 2005, p. 35) estimated that a total- 
or near-total failure of seedling recruitment occurs 20 percent of the 
time (1 of every 5 years). This species likely depends on the 
production of seeds in the wetter years and the persistence of the seed 
bank from previous years to survive until appropriate conditions for 
germination occur again.
    Astragalus magdalenae var. peirsonii occurs only in a vegetation 
community referred to as psammophytic (sand-loving) scrub, 
characterized by Croton wigginsii (Dunes croton), Eriogonum deserticola 
(Desert buckwheat), Helianthus niveus ssp. Tephrodes (Algodones Dunes 
sunflower), Palafoxia arida var. gigantean (Giant Spanish-needle), 
Pholisma sonorae, Tiquilia plicata (Plicate coldenia), Petalonyx 
thurberi (Thurber's sandpaper plant), and Panicum urvilleanum (Dunes 
panic grass) (WESTEC 1977, p. 58; Porter et al. 2005, p. 14). However, 
none of these species truly dominates the landscape (Porter et al. 
2005, p. 14).
    In areas where the sand dunes are more stabilized (less sand dune 
building and movement), such as along the margins of the dune fields, 
the open canopy psammophytic scrub community is replaced by the sandier 
phases of the creosote bush scrub community. Astragalus magdalenae var. 
peirsonii is apparently excluded from the relatively more closed 
canopy, creosote bush scrub community. The presence of this associated 
co-adapted psammophytic scrub plant community is important for 
population growth of A. m. var. peirsonii, because it provides habitat 
for insect pollinators required by A. m. var. peirsonii for fruit 
production (Porter et al. 2005, p. 35). The white-faced digger bee 
(Habropoda pallida) has been found to be the most frequent visitor on 
and may be the primary pollinator for this taxon (Porter et al. 2005, 
p. 32).

Intervening Areas for Gene Flow and Connectivity Within the Population

    The active sand dunes are continuous along the northwest-to-
southeast axis. The continuity of the sand dunes provides connectivity 
and facilitates gene flow within the population by allowing the 
movement of pollinators and the wind dispersal of fruit and seeds. 
Therefore, areas of the sand dunes between bowls occupied by Astragalus 
magdalenae var. peirsonii are important for maintaining gene flow 
within the population.

Areas That Provide the Basic Requirements for Growth (Such as Water, 
Light, and Minerals)

    A soil survey for the Imperial Valley area of Imperial County did 
not include the areas east of the Coachella Canal, but did depict a few 
adjacent portions of the Algodones Dunes as Rositas fine sand with 9 to 
30 percent slopes (Zimmerman 1981, p. 32). Rositas fine sand is 
described as deep, somewhat excessively drained, sloping soils formed 
in wind-blown sands of diverse origin. Dean (1978, p. 65) describes the 
sand as quartz with a mean grain size of 0.006 in (0.17 mm). The dunes 
contain 60 to 70 percent quartz and 30 to 40 percent feldspar sand 
(Norris and Norris 1961, p. 610). Porter et al. 2005 (pp. 26-27) 
describes the sand as containing very little organic material (less 
than 1 percent). They also found that following rainfall, the dune 
surface held considerable moisture. Within two to three weeks of a 
rainfall event, moist sand was found 1 in (3 cm) below the dune surface 
and later in the season (e.g., April) moist sand was found 7 in (19 cm) 
below the surface (Porter et al. 2005, pp. 26-27). Therefore, Rositas 
fine sands are required by this species to provide the basic 
requirements for growth.
    Based on the best available information at this time, the primary 
constituent elements required by Astragalus magdalenae var. peirsonii 
are:
    (1) West and/or northwest-facing sides of bowls, swales, and slopes 
consisting of Rositas fine sands within intact, active sand dune 
systems (defined as sand areas that are subject to sand-moving winds) 
in the existing range of the species that provide space needed for 
individual and population growth, including sites for germination, 
reproduction, seed dispersal, seed bank, and pollination;
    (2) The associated co-adapted psammophytic scrub plant community 
characterized by Croton wigginsii, Eriogonum deserticola, Helianthus 
niveus ssp. tephrodes, Palafoxia arida var. gigantean, Pholisma 
sonorae, Tiquilia plicata, Petalonyx thurberi, and Panicum urvilleanum 
that provides habitat for insect pollinators, particularly the white-
faced digger bee (Habropoda pallida), required for reproduction; and
    (3) Areas within intact, active sand dune systems between occupied 
bowls, swales, and slopes that allow for pollinator movement and wind 
dispersal of fruit and seeds.
    This proposed revision to the critical habitat designation is 
designed for the conservation of those areas containing PCEs necessary 
to support the life history functions that were the basis for the 
proposal and the areas containing those PCEs. Because not all life 
history functions require all the PCEs, not all proposed critical 
habitat units will contain all the PCEs.
    Units are designated based on sufficient PCEs being present to 
support at least one of the species' life history functions. Some units 
contain all PCEs and support multiple life processes, while some units 
contain only a portion of the PCEs necessary to support the species' 
particular use of that habitat.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing contain primary 
constituent elements that may require special management considerations 
or protection. We have also considered how revising the current 
designation highlights habitat that needs special management 
consideration or protection.
    Astragalus magdalenae var. peirsonii was listed due to destruction 
of plants and modification of habitat associated with OHV activity and 
associated recreational development (63 FR 53596). OHVs can impact 
habitat for A. m. var. peirsonii by:
    (1) Disrupting the natural processes that support dune formation, 
movement, and structure which could disrupt the available habitat 
needed for individual and population growth (PCE 1 and 3);
    (2) Causing the collapse of dune faces and ridges, which could 
result in burial of the seed bank (PCE 1);
    (3) Disturbing surface sand, thereby decreasing soil moisture 
needed for individual and population growth (PCE 1); and
    (4) Degrading the psammophytic scrub plant community that provides 
habitat for pollinators required for reproduction (PCE 2).
    In the 2004 final critical habitat rule, we stated that OHVs may 
also increase sand compaction (69 FR 47330). However, Porter et al. 
(2005, p. 27) measured soil compaction associated with undisturbed 
dunes, OHV-traversed sand dunes, and dunes disturbed by foot traffic, 
and found that soil compaction on the undisturbed dunes was 
significantly higher. They state that winds and rains cause the sand 
grains on the surface of the dune to sort and pack in undisturbed 
areas, thereby potentially reducing evaporative water loss from the 
dunes. They theorize that OHV activity or walking disturbs the surface 
and may result in increased

[[Page 41265]]

evaporative water loss in the dunes (Porter et al. 2005, p. 27).
    Special management considerations or protection may be required to 
minimize impacts to Astragalus magdalenae var. peirsonii habitat 
resulting from OHV recreation. The BLM (2003, Appendix 1 p. 13) listed 
the following possible management options to protect A. m. var. 
peirsonii and its habitat: (1) Use restrictions based on a permit 
system that would allow a specified level of use (high, medium, low, no 
use); (2) temporally based closures or limitations (open during some 
months or years, closed in others); (3) recognition and management of 
certain areas within a management area; and/or (4) increased education 
and outreach to OHV users to avoid certain areas. Special management 
considerations needed may also include additional enforcement to ensure 
visitor compliance with these management options.

Criteria Used To Identify Critical Habitat

    All proposed revised critical habitat units are within areas that 
we have determined were occupied at the time of listing, and that 
contain sufficient primary constituent elements (PCEs) to support life 
history functions essential for the conservation of the species. Lands 
were proposed for designation based on sufficient PCEs being present to 
support the life processes. Some lands contain only a portion of the 
PCEs necessary to support the particular use of that habitat.
    We consider BLM's 2005 (Willoughby 2005b) survey data to be the 
best available information on the distribution and range of Astragalus 
magdalenae var. peirsonii on the Algodones Dunes. As discussed in the 
``Background'' section of this proposed rule, an exceptional amount of 
rainfall was recorded during the 2004-2005 growing season, resulting in 
the highest recorded abundance of the species to date with an estimated 
1,831,076 plants (39.8 plants/ac (86 plants/ha)) in the dunes 
(Willoughby 2005b, pp. 9-11). This rainfall event coincided with the 
start of BLM's revised survey methodology, which consisted of a more 
detailed survey approach, as previously described in the ``Background'' 
section, and covered a larger portion of the dunes (Willoughby 2005a, 
pp. 1-5). The 2005 survey contained 123,488 sample points covering an 
effective area of 53,000 acres. Because these surveys occurred under 
the best possible growth and germination conditions for the plant and 
covered the largest area and greatest number of sample point locations, 
we relied on BLM's raw 2005 survey data as the basis for our criteria 
and GIS model to delineate proposed critical habitat for A. m. var. 
peirsonii.
    As discussed in further detail below, we used the following 
criteria to delineate proposed critical habitat: (1) Areas occupied by 
the species at the time of listing; (2) areas occupied at a density 
greater than 100 plants per ha according to BLM's 2005 survey data 
(Willoughby 2005b); and (3) areas containing the features essential to 
the conservation of the species. As stated in the final listing rule 
(63 FR 53596), the Algodones Dunes was, and continues to be, the only 
area in the United States known to be occupied by Astragalus magdalenae 
var. peirsonii.
    We delineated the revised proposed critical habitat boundaries 
using the following GIS model:
    (1) We selected occupied cells (defined in Willoughby (2005b) as 
25-m\2\ survey areas) with a plant density greater than 100 plants per 
ha (6 plants per cell) as core areas. About half of the plants observed 
in 2005 were in cells with a density more than or equal to 100 plants 
per ha. We used a density of 100 plants per ha since this captured the 
majority of the large clusters of standing plants. We believe these 
higher density core areas contain a larger extent of high quality 
habitat (e.g., suitable dune morphology and soil moisture) and 
therefore the PCEs required by this species. Also, since these core 
areas contain higher numbers of standing plants in proximity to each 
other, we believe that these areas likely support relatively large seed 
banks (a greater number of seeds being contributed by a greater number 
of standing plants). Therefore, based on our assumptions that these 
core areas contain a larger extent of high quality habitat and larger 
seed banks, we considered these areas most likely to contribute to the 
recovery of the species.
    (2) We expanded each core area to 1 ha then merged 1-ha core areas 
within 100-m distances of each other to form aggregated core areas. We 
expanded core areas to one ha to capture the entire population and seed 
bank in a dune bowl, based on our field observations that most occupied 
dune bowls are approximately one ha in size. We aggregated the 1-ha 
core areas within 100 m of each other to maintain space for wind 
dispersal of seeds between occupied dune bowls. This 100-m distance is 
a dunes-wide approximation of the average distance between aggregated 
core areas.
    (3) We then eliminated outlying or remote core areas greater than 
400 meters (4 bowls) from adjacent core areas and core areas less than 
400 m away but with a plant density less than approximately 370 plants 
(= 0.0005 of the total observed population of 739,805) within the 
aggregated core area. This step allowed us to remove core areas with 
low numbers of plants considered not essential to the conservation of 
the species. Since these areas are a greater distance from aggregated 
core areas and/or contain relatively fewer standing plants, we believe 
these areas either contain a smaller extent of high quality habitat 
(e.g., suitable dune morphology and soil moisture) and/or support 
relatively small seed banks. Since we were not able to determine the 
importance of these outlying or remote areas to the long-term 
conservation of the species, we did not include them in the proposed 
designation.
    (4) We then overlaid a 100-m\2\ grid onto the final core areas to 
define the legal boundaries of the proposed critical habitat. We 
removed remaining small polygons less than 400 m from the core habitat 
in which the plant density was low. Since these polygons contained a 
low number of standing plants, we believe these areas contain a smaller 
extent of high quality habitat (e.g., suitable dune morphology and soil 
moisture) and/or support relatively small seed banks. Since we are not 
able to determine the importance of these lower density areas to the 
long-term conservation of the species at this time, we did not include 
them in the proposed designation.
    This methodology captured approximately 92 percent of the 2005 
observed population and includes areas we believe contain high density 
core populations, a large extent of high quality habitat, and a large 
seed bank and therefore important for the recovery of the species.
    Areas meeting the proposed critical habitat boundaries were then 
analyzed to determine if any existing conservation or management plans 
exist that benefit the taxon and its PCEs. As discussed in the 2004 
final critical habitat rule (69 FR 47330), BLM released a proposed 
Recreation Area Management Plan (RAMP) for the ISDRA in 2003 (BLM 
2003). The RAMP includes an intensive monitoring/study plan that the 
BLM has implemented (BLM 2003). As a result of the September 25, 2006, 
order and injunction regarding final relief, referenced in the 
``Background'' section of this proposed rule, the Environmental Impact 
Statement associated with the 2003 RAMP was remanded back to the BLM 
for further consideration.

[[Page 41266]]

    When determining proposed critical habitat boundaries within this 
proposed rule, we made every effort to avoid including developed areas 
such as buildings, paved areas, and other structures that lack PCEs for 
Astragalus magdalenae var. peirsonii. The scale of the maps prepared 
under the parameters for publication within the Code of Federal 
Regulations may not reflect the exclusion of such developed areas. Any 
such structures and the land under them inadvertently left inside 
critical habitat boundaries shown on the maps of this proposed rule 
have been excluded by text in the proposed rule and are not proposed 
for designation as critical habitat. Therefore, Federal actions limited 
to these areas would not trigger section 7 consultation, unless they 
affect the species or primary constituent elements in adjacent critical 
habitat.

Summary of Changes From Previously Designated Critical Habitat

    The areas identified in this proposed rule constitute a proposed 
revision of the areas we proposed to designate as critical habitat for 
Astragalus magdalenae var. peirsonii on August 5, 2003 (68 FR 46143), 
and designated on August 4, 2004 (69 FR 47330). The main differences 
include the following:
    1. This proposed revision includes 16,108 ac (6,519 ha) of land in 
Imperial County, California, a reduction of 36,672 acre (14,840 ha) 
from the 2003 proposed rule (68 FR 46143) and 5,728 ac (2,329 ha) from 
the 2004 final critical habitat rule (69 FR 47330). The differences in 
data and selection criteria between the currently designated critical 
habitat and this proposed revision are described further below.
    2. The reduction in total acreage from the 2003 proposed critical 
habitat designation is primarily the result of a revised methodology to 
delineate critical habitat. The model used to delineate critical 
habitat boundaries in the 2003 proposed rule was based primarily on 
species survey data collected by the BLM from 1998 through 2002 along 
transects throughout the areas of the Algodones Dunes occupied by 
Astragalus magdalenae var. peirsonii. Each transect was composed of a 
series of grid squares measuring approximately 0.45 mi\2\. In order to 
create the model, we used the coarse scale BLM survey data to 
extrapolate the values for four variables: (1) The presence or absence 
of standing plants of A. m. var. peirsonii; (2) the abundance of A. m. 
var. peirsonii; (3) the frequency of occurrence of A. m. var. peirsonii 
over the survey years; and (4) the number of associated rare 
psammophytic plant taxa present. These variables were scored, then 
standardized, and finally compiled. Because of the dynamic nature of 
the distribution of this plant, the cyclic nature of suitable climatic 
regimes, and the presence of a seed bank for A. m. var. peirsonii, grid 
squares where this plant was not found were included in critical 
habitat if they were contiguous with occupied grid squares (68 FR 
46143). The data used to create the 2003 model was considered the best 
available at that time and allowed us to identify areas known to be 
occupied by A. m. var. peirsonii as well as areas likely to be occupied 
based on the presence of suitable habitat (e.g. presence of associated 
psammophytic plant taxa).
    As discussed in the ``Background'' and ``Criteria Used to Identify 
Critical Habitat'' sections of this proposed rule, the model used to 
delineate revised critical habitat boundaries in this revised proposed 
rule is based on survey data collected by BLM in 2005 (Willoughby 
2005b). A higher than average rainfall occurred during the 2004-2005 
growing season, resulting in the highest Astragalus magdalenae var. 
peirsonii densities to date. Based on these survey data, our revised 
model uses occupancy and density to outline areas known to be occupied 
by the species. The model used to delineate the revised proposed 
critical habitat is based on data collected along a larger number of 
transects (510 versus 34) during a year of the highest recorded A. m. 
var. peirsonii abundance. Therefore, the data are more robust, relying 
primarily on occupancy documented over a larger area of the dunes and 
at a finer spatial resolution (25 m\2\ grid cells) during optimal 
environmental conditions instead of on the presence of suitable habitat 
(e.g., the presence of associated rare psammophytic plant taxa) as did 
the 2003 model.
    In summary, we consider the model used to delineate revised 
critical habitat boundaries in this proposed rule to more accurately 
depict the areas known to be occupied by the species than the model 
used to delineate the 2003 proposed critical habitat boundaries. We 
believe that the 2003 designation was more inclusive due to limited 
data and the rough spatial scale of the data, and the 2005 data now 
provide more specific and reliable information regarding abundance and 
distribution, allowing us to more precisely identify habitat essential 
to the conservation of the species associated with core population 
areas. Based on the new model, we determined that 36,535 ac (14,785 ha) 
previously proposed as critical habitat in 2003 are not essential to 
the conservation of the taxon, and therefore did not include these 
areas in the revised proposed critical habitat designation.
    3. Of the 16,108 ac (6,519 ha) included in this proposed revision 
to critical habitat, 14 ac (6 ha) in Subunit 3B, 331 ac (134 ha) in 
Subunit 3C, and 75 ac (30 ha) in Unit 4 were not included in the 2003 
proposed critical habitat rule. Also, 9,573 ac (3,874 ha) in Subunits 
2A, 2B, 3A, 3B, 3C and all of Unit 4 (218 ac (88 ha)) were not included 
in the 2004 final rule (see Table 2 below). These 9,573 ac (3,874 ha) 
were excluded in the 2004 final rule under section 4(b)(2) of the Act 
as the Secretary determined that the economic benefits of excluding 
these lands outweighed the conservation benefits of including these 
lands in the designation due to the large potential economic and human 
costs of the designation (69 FR 47330). These lands are again under 
consideration for critical habitat in this proposed revision to 
critical habitat.
    All lands proposed for critical habitat have been re-evaluated in a 
revised economic analysis, consistent with the lawsuit discussed in the 
``Previous Federal Actions'' section of this proposed rule. The new 
draft economic analysis is available for public review and comment 
concurrently with this rule (see ``Economic Analysis'' section below). 
Based on public comment and information in the economic analysis, 
habitat being proposed as critical habitat herein may be excluded from 
final critical habitat by the Secretary under the provisions of section 
4(b)(2) of the Act and in our implementing regulations at 50 CFR 
424.19. Table 2 below outlines the changes in Unit/Subunit number and 
area between the 2003 proposed critical habitat rule, the 2004 final 
critical habitat rule, and the 2007 revised proposed critical habitat 
rule for Astragalus magdalenae var. peirsonii.

[[Page 41267]]



 Table 2.--Changes in Unit/Subunit Numbering and Area (in acres (ac) and Hectares (ha)) Between the 2003 Proposed Critical Habitat Rule, the 2004 Final
                   Critical Habitat Rule, and the 2007 Revised Proposed Critical Habitat Rule for Astragalus magdalenae var. peirsonii
--------------------------------------------------------------------------------------------------------------------------------------------------------
             2003 proposed rule  (68 FR 46143)                      2004 Final rule  (69 FR 47330)                  2007 revised  proposed rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              Area  (ac
              Unit/  Subunit               Area  (ac (ha))          Unit/  Subunit              (ha))             Unit/  Subunit         Area  (ac (ha))
--------------------------------------------------------------------------------------------------------------------------------------------------------
1A.......................................   16,510 (6,681)  1A...........................  16,509 (6,681)  1A, 1B, 1C, 1D..............    4,675 (1,892)
1B.......................................  34,333 (13,894)  1B...........................       \1\ 5,355  2A, 2B, 3A, 3B, 3C..........       \4\ 11,215
                                                                                                  (2,167)                                        (4,539)
1C.......................................      1,490 (603)  1C...........................       \2\ 0 (0)  4...........................     \5\ 218 (88)
1D.......................................        447 (181)  1D...........................       \3\ 0 (0)  (none)......................           (none)
                                          -----------------                               ----------------                              ----------------
    Totals...............................  52,780 (21,359)  .............................  21,863 (8,848)  ............................  16,108 (6,519)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ 28,978 ac (11,727 ha) excluded from final designation under section 4(b)(2) of the Act.
\2\ Excluded from the final designation under section 4(b)(2) of the Act.
\3\ Removed from the final designation; not essential to the conservation of the species.
\4\ Includes 331 ac (134 ha) not included in the 2004 final designation.
\5\ Includes 75 ac (30 ha) not designated in the 2004 final designation.

Proposed Revisions to the Critical Habitat Designation

    We are proposing approximately 16,245 ac (6,574 ha) as critical 
habitat for Astragalus magdalenae var. peirsonii within 4 units further 
divided into 9 subunits. These lands are under Federal (15,995 ac 
(6,473 ha)), private (239 ac (97 ha)), and State (11 ac (4 ha)) 
ownership. The approximate area (ac (ha)) encompassed within each 
proposed critical habitat unit/subunit and landownership is shown in 
Table 3 below. We are not proposing to exclude under section 4(b)(2) 
any areas from the final designation (see ``Exclusions Under Section 
4(b)(2) of the Act'' for a detailed discussion). These units generally 
correspond to those units in the 2004 designation (see Table 2), and if 
finalized would entirely replace the current critical habitat 
designation for A. m. var. peirsonii in 50 CFR 17.95(a). The critical 
habitat areas described below constitute our best current assessment of 
areas determined to be occupied at the time of listing on which are 
found the primary constituent elements that may require special 
management considerations or protection.

     Table 3.--Proposed Critical Habitat (acres (ac), Hectares (ha)) for Astragalu magdalenae var. peirsonii
                   [Area estimates reflect all land within critical habitat unit boundaries.]
----------------------------------------------------------------------------------------------------------------
                                                                                                 Total area (ac
         Critical habitat unit            Critical habitat subunit      Land ownership\1\            (ha))
----------------------------------------------------------------------------------------------------------------
Unit 1--Mammoth Wash/North Algodones     .........................  .........................      4,675 (1,892)
 Dunes Wilderness.
                                         Subunit 1A...............  BLM......................           203 (82)
                                                                    Private..................           218 (88)
                                         Subunit 1B...............  BLM......................        1,389 (562)
                                                                    Private..................             22 (9)
                                         Subunit 1C...............  BLM......................          730 (296)
                                                                    State....................             11 (4)
                                         Subunit 1D...............  BLM......................        2,103 (851)
Unit 2--Gecko/Glamis...................  .........................  .........................      4,003 (1,620)
                                         Subunit 2A...............  BLM......................      2,716 (1,099)
                                         Subunit 2B...............  BLM......................        1,287 (521)
Unit 3--Adaptive Management Area/Ogilby  .........................  .........................      7,212 (2,919)
                                         Subunit 3A...............  BLM......................      4,487 (1,816)
                                         Subunit 3B...............  BLM......................        1,176 (476)
                                         Subunit 3C...............  BLM......................        1,549 (627)
Unit 4--Buttercup......................  .........................  BLM......................           218 (88)
                                                                                              ------------------
    Total..............................  .........................  .........................    16,108 (6,519)
----------------------------------------------------------------------------------------------------------------
\1\ BLM = Bureau of Land Management; State = California State Lands Commission.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for Astragalus magdalenae var. 
peirsonii, below.

Unit 1--Mammoth Wash/North Algodones Dunes Wilderness (4,675 ac (1,892 
ha))

    Unit 1 consists of 4,675 ac (1,892 ha) of land, further divided 
into 4 subunits (1A, 1B, 1C, 1D), primarily under BLM ownership (Table 
2). This unit includes land in the BLM's Mammoth Wash and North 
Algodones Dunes Wilderness Management Areas.

Subunits 1A (421 ac (170 ha)) and 1B (1,411 ac (571 ha))

    Subunits 1A and 1B are in the Mammoth Wash area. About half of the 
land in Subunit 1A is under BLM ownership, and the other half is under

[[Page 41268]]

private ownership (Table 2). The majority of the land in Subunit 1B is 
owned by the BLM (Table 2). Both subunits were occupied at the time of 
listing, are currently occupied, and contain all of the features (PCEs 
1, 2, and 3) essential to the conservation of the species. 
Additionally, habitat in Subunits 1A and 1B supports the largest 
numbers of Astragalus magdalenae var. peirsonii in the Mammoth Wash 
Management Area, with approximately 8,002 plants observed in Subunit 1A 
and 24,623 plants observed in Subunit 1B (based on our calculations 
using BLM's 2005 raw survey data). Habitat within these subunits 
contains a higher density of standing plants and is likely to support a 
large seed bank based on our analysis of BLM's 2004 survey data in 
addition to containing the PCEs required by the species.
    The Mammoth Wash Management Area is used for camping, hunting, 
rights of way, motion picture/television filming, and OHV recreation 
(BLM 2003, p. 67). The majority of Subunit 1B is within an interim 
closure area, temporarily closed to OHV activity. Because the area 
outside of the interim closure area is remote and difficult to access, 
OHV recreationists give it relatively light visitation on holiday 
weekends and minimal visitation during the week (BLM 2003, p. 67). This 
management area had the lowest average annual visitation (approximately 
80 vehicles) of all management areas open for OHV use during the 2003-
2004, 2004-2005, and 2005-2006 seasons (BLM 2006).
    The PCEs found in Subunit 1A may require special management 
considerations or protection such as use restrictions and/or additional 
enforcement to minimize impacts associated with OHV use and associated 
recreational activity. The majority of the habitat in Subunit 1B is 
currently being managed by the BLM to minimize impacts associated with 
OHV use through an interim closure of the area. However, regardless of 
the future status of this interim closure area, the PCEs found in this 
subunit may require special management considerations or protection, 
such as OHV-use restrictions and/or additional enforcement in the 
future to minimize impacts associated with OHV recreation (see 
``Special Management Considerations or Protection'' section).

Subunits 1C (741 ac (300 ha)) and 1D (2,103 ac (851 ha))

    The majority of land in Subunit 1C and all of the land in Subunit 
1D is owned by the BLM (Table 2). Both subunits were occupied at the 
time of listing, are currently occupied, and contain all of the 
features (PCEs 1, 2, and 3) essential to the conservation of the 
species. Additionally, habitat in Subunits 1C and 1D retains the most 
natural and pristine features of the Algodones Dunes ecosystem, and 
includes the best remaining example of a dune system undisturbed by 
intensive OHV recreation in the ISDRA. These areas also support the 
largest numbers of Astragalus magdalenae var. peirsonii in the North 
Algodones Dunes Wilderness Management Area with approximately 15,519 
plants observed in Subunit 1C and 42,673 plants observed in Subunit 1D 
(based on our calculations using BLM's 2005 raw survey data. Habitat 
within these subunits contains a higher density of standing plants and 
is likely to support a large seed bank based on our analysis of BLM's 
2004 survey data in addition to containing the PCEs required by the 
species.
    The North Algodones Dunes Wilderness Management Area is a 32,000-ac 
(12,955 ha) area that was designated as a wilderness area in 1994 to 
protect a number of rare and endemic plant and animal species, 
including Astragalus magdalenae var. peirsonii. Activities in this area 
include photographic activities, sightseeing, walking, hiking, 
backpacking, camping, nature study, horseback riding, hunting, rights-
of-way, and wildlife viewing (BLM 2003, p. 71). No recreational use of 
mechanized vehicles of any kind (OHVs, motorcycles, bicycles, hang 
gliders, motorized equipment, or motorboats) is allowed in the 
wilderness area; management takes the form of ``minimal and subtle on-
site controls and restrictions'' (Willoughby 2003). However, people 
occasionally trespass with motorized vehicles, and the BLM acknowledges 
that the amount of motorized trespasses in this area should be reduced 
(BLM 2003, p. 71).
    The PCEs found in both subunits may require special management 
considerations or protection, such as additional enforcement to 
minimize impacts associated with unauthorized trespass by motorized 
vehicles (see ``Special Management Considerations or Protection'' 
section).

Unit 2--Gecko/Glamis (4,003 ac (1,620 ha))

    Unit 2 consists of 4,003 ac (1,620 ha) of land further divided into 
2 subunits (2A and 2B) entirely under BLM ownership (Table 2). This 
unit includes lands in the BLM's Gecko and Glamis Management Areas, 
with the majority being in the Gecko Management Area.

Subunits 2A (2,716 ac (1,099 ha)) and 2B (1,287 ac (521 ha))

    Both subunits were occupied at the time of listing, are currently 
occupied, and contain all of the features (PCEs 1, 2, and 3) essential 
to the conservation of the species. Additionally, habitat in Subunits 
2A and 2B supports the largest numbers of Astragalus magdalenae var. 
peirsonii in the Gecko/Glamis Management Areas with approximately 
37,234 plants observed in Subunit 2A and 20,865 plants observed in 
Subunit 2B (based on our calculations using BLM's 2005 raw survey 
data). Habitat within these subunits contains a higher density of 
standing plants and is likely to support a large seed bank based on our 
analysis of BLM's 2004 survey data in addition to containing the PCEs 
required by the species.
    Subunits 2A and 2B are almost entirely within BLM's Gecko 
Management Area, the most developed of the eight management areas 
within the ISDRA. It contains campgrounds, toilets, trash stations, 
camping pads, overlooks, commercial vending, and a ranger station (BLM 
2003, pp. 75-76). The Gecko Management Area had the highest average 
annual visitation (approximately 144,421 vehicles) of the management 
areas open for OHV use during the 2003-2004, 2004-2005, and 2005-2006 
seasons (BLM 2006). However, the majority of Subunit 2B is within an 
interim closure area, temporarily closed to OHV activity.
    The PCEs found in Subunit 2A may require special management 
considerations or protection, such as use restrictions and/or 
additional enforcement to minimize impacts associated with intensive 
OHV activity. The majority of the habitat in Subunit 2B is currently 
being managed by the BLM to minimize impacts associated with OHV-use 
through an interim closure of the area. However, regardless of the 
future status of this interim closure area, the PCEs found in this 
subunit may require special management considerations or protection 
such as OHV-use restrictions and/or additional enforcement in the 
future to minimize impacts associated with OHV recreation (see 
``Special Management Considerations or Protection'' section).

Unit 3--Adaptive Management Area (AMA)/Ogilby (7,212 ac (2,919 ha))

    Unit 3 consists of (7,212 ac (2,919 ha)) of land further divided 
into 3 subunits (3A, 3B, 3C) entirely under BLM ownership (Table 2). 
This unit includes lands in the BLM's AMA and Ogilby Management Area.

[[Page 41269]]

Subunits 3A (4,487 ac (1,816 ha)), 3B (1,176 ac (476 ha)), and 3C 
(1,549 ac (627 ha))

    All three subunits were occupied at the time of listing, are 
currently occupied, and contain all of the features (PCEs 1, 2, and 3) 
essential to the conservation of the species. Additionally, habitat in 
Subunits 3A, 3B, and 3C represents the largest, widest, and highest 
sand dune fields within the Algodones Dunes and supports the largest 
numbers of Astragalus magdalenae var. peirsonii dunes-wide, with 
approximately 200,021 plants observed in Subunit 3A; 178,837 plants 
observed in Subunit 3B; and 125,526 plants observed in Subunit 3C 
(based on our calculations using BLM's 2005 raw survey data). Habitat 
within these subunits contains a higher density of standing plants and 
is likely to support a large seed bank based on our analysis of BLM's 
2004 survey data in addition to containing the PCEs required by the 
species.
    All of Subunit 3A and about half of Subunit 3B are in the BLM's 
AMA. The other half of Subunit 3B and all of Subunit 3C are in the 
Ogilby Management Area. The AMA is intended primarily for OHV 
recreation, although there is also rights-of-way use (BLM 2003, p. 84). 
However, the entire AMA, including all of Subunit 3A and most of 
Subunit 3B, is within an interim closure area, temporarily closed to 
OHV activity. The Ogilby Management Area is used for camping, OHV 
recreation, and rights-of-way (BLM 2003, p. 90). A portion of the 
Ogilby Management Area, including a small portion of Subunit 3C, is 
within an interim closure area, temporarily closed to OHV activity. 
Areas of the Ogilby Management Area open to OHV use had average annual 
visitation of approximately 12,951 vehicles during the 2003-2004, 2004-
2005, and 2005-2006 seasons (BLM 2006).
    The PCEs found in Subunit 3C not within the interim closure area 
may require special management considerations or protection such as use 
restrictions and/or additional enforcement to minimize impacts 
associated with OHV recreation. Habitat in Subunits 3A and 3B, and a 
small portion of Subunit 3C, are currently being managed by the BLM to 
minimize impacts associated with OHV use through an interim closure of 
the area. However, regardless of the future status of this interim 
closure area, the PCEs found in these subunits may require special 
management considerations or protection such as OHV-use restrictions 
and/or additional enforcement in the future to minimize impacts 
associated with OHV recreation (see ``Special Management Considerations 
or Protection'' section).

Unit 4--Buttercup (218 ac (88 ha))

    Unit 4 consists of 218 ac (88 ha) of land entirely under BLM 
ownership (Table 2). This unit includes lands in the BLM's Buttercup 
Management Area. This unit was occupied at the time of listing, is 
currently occupied, and contains all of the features (PCEs 1, 2, and 3) 
essential to the conservation of the species. Additionally, habitat in 
Unit 4 supports the largest number of Astragalus magdalenae var. 
peirsonii in the Buttercup Management Area with approximately 30,011 
plants observed (based on our calculations using BLM's 2005 raw survey 
data). Habitat within these subunits contains a higher density of 
standing plants and is likely to support a large seed bank based on our 
analysis of BLM's 2004 survey data in addition to containing the PCEs 
required by the species.
    This area is used for camping, OHV recreation, sightseeing, 
commercial vending, education, filming and rights of way (BLM 2003, p. 
97). The Buttercup Management Area had the second highest average 
annual visitation (approximately 78,629 vehicles) of the management 
areas open for OHV use during the 2003-2004, 2004-2005, and 2005-2006 
seasons (BLM 2006). Due to its proximity to Mexico, there are also many 
United States--Mexico international border issues (e.g. illegal border 
crossings and smuggling of goods and contraband) in this management 
area requiring frequent patrol by the U.S. Border Patrol (BLM 2003, p. 
97). The PCEs found in Unit 4 may require special management 
considerations or protection such as use restrictions and/or additional 
enforcement to minimize impacts associated with intensive OHV activity 
(see ``Special Management Considerations or Protection'' section).

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. Decisions 
by the 5th and 9th Circuit Court of Appeals have invalidated our 
definition of adversely modify (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442F (5th 
Cir 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Pursuant to current national policy and the statutory 
provisions of the Act, destruction or adverse modification is 
determined on the basis of whether, with implementation of the proposed 
Federal action, the affected critical habitat would remain functional 
(or retain the current ability for the primary constituent elements to 
be functionally established) to serve its intended conservation role 
for the species.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a species proposed for listing or result in destruction or adverse 
modification of proposed critical habitat. This is a procedural 
requirement only. However, once a proposed species becomes listed, or 
proposed critical habitat is designated as final, the full prohibitions 
of section 7(a)(2) apply to any Federal action. The primary utility of 
the conference procedures is to maximize the opportunity for a Federal 
agency to adequately consider proposed species and critical habitat and 
avoid potential delays in implementing their proposed action because of 
the section 7(a)(2) compliance process, should those species be listed 
or the critical habitat designated.
    Under conference procedures, the Service may provide advisory 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. The Service may 
conduct either informal or formal conferences. Informal conferences are 
typically used if the proposed action is not likely to have any adverse 
effects to the proposed species or proposed critical habitat. Formal 
conferences are typically used when the Federal agency or the Service 
believes the proposed action is likely to cause adverse effects to 
proposed species or critical habitat, inclusive of those that may cause 
jeopardy or adverse modification.
    The results of an informal conference are typically transmitted in 
a conference report, while the results of a formal conference are 
typically transmitted in a conference opinion. Conference

[[Page 41270]]

opinions on proposed critical habitat are typically prepared according 
to 50 CFR 402.14, as if the proposed critical habitat were designated. 
We may adopt the conference opinion as the biological opinion when the 
critical habitat is designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)). As noted above, any conservation recommendations in a 
conference report or opinion are strictly advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. As a result of this consultation, 
compliance with the requirements of section 7(a)(2) will be documented 
through the Service's issuance of: (1) A concurrence letter for Federal 
actions that may affect, but are not likely to adversely affect, listed 
species or critical habitat; or (2) a biological opinion for Federal 
actions that are likely to adversely affect listed species or critical 
habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in jeopardy to a listed species or the destruction or 
adverse modification of critical habitat, we also provide reasonable 
and prudent alternatives to the project, if any are identifiable. 
``Reasonable and prudent alternatives'' are defined at 50 CFR 402.02 as 
alternative actions identified during consultation that can be 
implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that the Director believes would avoid 
jeopardy to the listed species or destruction or adverse modification 
of critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in certain instances, 
including where a new species is listed or critical habitat is 
subsequently designated that may be affected by the Federal action and 
the Federal agency has retained discretionary involvement or control 
over the action or such discretionary involvement or control is 
authorized by law. Consequently, some Federal agencies may request 
reinitiation of consultation with us on actions for which formal 
consultation has been completed, if those actions may affect 
subsequently listed species or designated critical habitat or adversely 
modify or destroy proposed critical habitat.
    Federal activities that may affect the Astragalus magdalenae var. 
peirsonii or its designated critical habitat require section 7(a)(2) 
consultation under the Act. Activities on State, Tribal, local or 
private lands requiring a Federal permit (such as a permit from the 
Corps under section 404 of the Clean Water Act or a permit under 
section 10(a)(1)(B) of the Act from the Service) or involving some 
other Federal action (such as funding from the Federal Highway 
Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency) are also subject to the section 7(a)(2) 
consultation process. Federal actions not affecting listed species or 
critical habitat, and actions on State, Tribal, local or private lands 
that are not federally funded, authorized, or permitted, do not require 
section 7(a)(2) consultations.

Application of the Jeopardy and Adverse Modification Standards for 
Actions Involving Effects to the Astragalus magdalenae var. peirsonii 
and Its Critical Habitat

Jeopardy Standard

    Prior to and following designation of critical habitat, the Service 
has applied an analytical framework for Astragalus magdalenae var. 
peirsonii jeopardy analyses that relies heavily on the importance of 
core area populations to the survival and recovery of A. m. var. 
peirsonii. The section 7(a)(2) analysis is focused not only on these 
populations but also on the habitat conditions necessary to support 
them.
    The jeopardy analysis usually expresses the survival and recovery 
needs of the Astragalus magdalenae var. peirsonii in a qualitative 
fashion without making distinctions between what is necessary for 
survival and what is necessary for recovery. Generally, if a proposed 
Federal action is incompatible with the viability of the affected core 
area population(s), inclusive of associated habitat conditions, a 
jeopardy finding is warranted because of the relationship of each core 
area population to the survival and recovery of the species as a whole.

Adverse Modification Standard

    For the reasons described in the Director's December 9, 2004, 
memorandum, the key factor related to the adverse modification 
determination is whether, with implementation of the proposed Federal 
action, the affected critical habitat would remain functional (or 
retain the current ability for the primary constituent elements to be 
functionally established) to serve its intended conservation role for 
the species. Generally, the conservation role of Astragalus magdalenae 
var. peirsonii critical habitat units is to support viable core 
populations.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat would be those that alter the primary constituent elements to 
the extent that the value of critical habitat for the conservation of 
Astragalus magdalenae var. peirsonii is appreciably reduced. Such 
activities may also jeopardize the continued existence of the species.
    Nearly the entire designated critical habitat is on BLM lands. 
Activities on BLM lands or by Federal agencies that may affect 
Astragalus magdalenae var. peirsonii or its critical habitat require 
section 7(a)(2) consultation. Activities on private or State lands 
requiring a permit from BLM or any other activity requiring Federal 
action (i.e., funding or authorization) that may affect this species or 
its critical habitat will also continue to be subject to the section 
7(a)(2) consultation requirement. Federal actions not affecting A. m. 
var. peirsonii or its critical habitat, as well as actions on non-
Federal lands that are not federally funded or permitted, will not 
require section 7(a)(2) consultations for this species.
    The areas proposed to be designated as critical habitat are 
occupied by either above-ground plants or a soil seed bank of 
Astragalus magdalenae var. peirsonii. BLM and other Federal agencies 
already consult with us on activities where the species may be present 
to ensure that their actions do not jeopardize the continued existence 
of the species or destroy or adversely modify its currently designated 
critical habitat. Actions on which Federal agencies consult with us on 
effects to A. m. var. peirsonii or its critical habitat include, but 
are not limited to:
    (1) Development of the Recreational Area Management Plan for the 
Imperial

[[Page 41271]]

Sand Dunes Recreation Area by the Bureau of Land Management;
    (2) Issuance of permits for private actions (e.g. filming) on 
Federal lands within the Algodones Dunes by the Bureau of Land 
Management;
    (3) Modifications to the All American Canal by the Bureau of 
Reclamation; and
    (4) Construction and maintenance of facilities by the U.S. Border 
Patrol.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and require that a section 
7(a)(2) consultation be conducted include, but are not limited to:
    (1) Activities that disrupt the natural processes that support dune 
formation, movement, and structure; or otherwise change the morphology 
of the dunes (e.g., ridges, slip faces, bowls, swales); and
    (2) Activities that degrade or diminish psammophytic scrub, 
including activities that (a) disturb the sand such that soil moisture 
is lost resulting in decreased seed germination or desiccation of 
plants resulting in premature death, or (b) bury or expose seeds 
resulting in decreased seed germination; or (c) physically impact or 
dislodge plants resulting in premature death.
    We consider all of the units proposed as critical habitat to 
contain features essential to the conservation of Astragalus magdalenae 
var. peirsonii. All units are within the geographic range of this 
taxon, all were occupied by the species at the time of listing, and are 
currently occupied by the A. m. var. peirsonii. Federal agencies 
already consult with us on activities in areas currently occupied by A. 
m. var. peirsonii, or if the species or its currently designated 
critical habitat may be affected by the action, to ensure that their 
actions do not jeopardize the continued existence of A. m. var. 
peirsonii or destroy or adversely modify its designated critical 
habitat.

Exclusions Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data after taking into consideration the economic impact, national 
security impact, and any other relevant impact, of specifying any 
particular area as critical habitat. The Secretary may exclude an area 
from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the Congressional Record is clear that the Secretary is 
afforded broad discretion regarding which factor(s) to use and how much 
weight to give to any factor. However, we are not proposing to exclude 
any lands under provisions of section 4(b)(2) in this proposed rule.

Economic Analysis

    An analysis of the economic impacts of the revised proposal of 
critical habitat for Astragalus magdalenae var. peirsonii is available 
for review and comment. The comment period for the draft economic 
analysis runs concurrently with the comment period for this proposed 
rule. Copies of the draft economic analysis are available for 
downloading from the Internet at http://www.fws.gov/carlsbad/ or by 
contacting the Carlsbad Fish and Wildlife Office directly (see 
ADDRESSES section).
    The draft economic analysis considers the potential economic 
effects of actions relating to the conservation of Astragalus 
magdalenae var. peirsonii, including costs associated with sections 4, 
7, and 10 of the Act, and specifying the incremental effects 
attributable to designating critical habitat. It further considers the 
economic effects of protective measures taken as a result of other 
Federal, State, and local laws that aid habitat conservation for A. m. 
var. peirsonii in habitat areas with features essential to the 
conservation of this taxon. The analysis considers both economic 
efficiency and distributional effects. In the case of habitat 
conservation, efficiency effects generally reflect the ``opportunity 
costs'' associated with the commitment of resources to comply with 
habitat protection measures (e.g., lost economic opportunities 
associated with restrictions on land use). This analysis also addresses 
how potential economic impacts are likely to be distributed, including 
an assessment of any local or regional impacts of habitat conservation 
and the potential effects of conservation activities on small entities 
and the energy industry. This information can be used by decision-
makers to assess whether the effects of the designation might unduly 
burden a particular group or economic sector. Finally, this analysis 
looks retrospectively at costs that have been incurred since the date 
the species was listed as an endangered species and considers those 
costs that may occur in the 20 years following the designation of 
critical habitat (i.e., 2008-2027).
    This analysis quantifies potential economic impacts that may result 
from the designation of critical habitat. Specifically, the analysis 
quantifies the impact of a loss of OHV trips that could result from the 
potential closures of portions of the critical habitat as a result of 
the designation, as well as expected administrative and project 
modification costs attributable to critical habitat designation. 
Additionally, the analysis provides information on the full value of 
OHV use of the ISDRA in the absence of closures resulting from critical 
habitat. The analysis also quantifies administrative costs attributable 
to critical habitat designation, potential project modification costs 
attributable to critical habitat, and potential public cost savings. At 
the lower bound, in the absence of closures to OHV use resulting from 
critical habitat, only impacts related to administrative efforts are 
expected. At the upper bound, the forecast impacts assume this 
designation will result in restrictions in OHV use, and that as a 
result of these restrictions, some OHV recreationists may no longer 
visit the ISDRA, potentially resulting in a consumer surplus loss. 
Specifically, upper bound impacts reflect a potential loss of 
visitation in portions of the area proposed for critical habitat. 
Within the upper bound scenario, a range of impacts is estimated, 
representing differing assumptions underlying the forecast visitation 
growth rate for the ISDRA.
    The total potential post-designation efficiency impacts for 2008-
2027 range from a lower bound of zero to an upper bound range of $91.8 
million in undiscounted dollars. In annualized terms, the impacts range 
from zero to $4.59 million. At a three percent discount rate, the 
impacts range from zero to $67.7 million over 20 years. At a seven 
percent discount rate, the impacts range from zero to $47.6 million 
over 20 years.
    We solicit data and comments from the public on these draft 
documents, as well as on all aspects of the proposal. We may revise the 
proposal, or its supporting documents, to incorporate or address new 
information received during the comment period. In particular, we may 
exclude an area from critical habitat if we determine that the benefits 
of excluding the area outweigh the benefits of including the area as 
critical habitat, provided such exclusion will not result in the 
extinction of the species.

Peer Review

    In accordance with our joint policy published in the Federal 
Register on

[[Page 41272]]

July 1, 1994 (59 FR 34270), we will seek the expert opinions of at 
least three appropriate and independent specialists regarding this 
proposed rule. The purpose of such review is to ensure that our 
critical habitat designation is based on scientifically sound data, 
assumptions, and analyses. We will send copies of this proposed rule to 
these peer reviewers immediately following publication in the Federal 
Register. We will invite these peer reviewers to comment during the 
public comment period on the specific assumptions and conclusions 
regarding the proposed designation of critical habitat.
    We will consider all comments and information received during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Upon publication of this proposed rule, we are announcing 
that public hearings will be held on both the proposed critical habitat 
rule and the draft economic analysis on August 23, 2007, from 1 p.m. to 
3 p.m. and 6 p.m. to 8 p.m. at the Carlsbad Fish and Wildlife Office in 
Carlsbad, California (see ADDRESSES). The location, date, and times of 
these public hearings will also be announced in local newspapers at 
least 15 days prior to the first hearing.

Clarity of the Rule

    Executive Order 12866 (Regulatory Planning and Review) requires 
each agency to write regulations and notices that are easy to 
understand. We invite your comments on how to make this proposed rule 
easier to understand, including answers to questions such as the 
following: (1) Are the requirements in the proposed rule clearly 
stated? (2) Does the proposed rule contain technical jargon that 
interferes with the clarity? (3) Does the format of the proposed rule 
(grouping and order of the sections, use of headings, paragraphing, and 
so forth) aid or reduce its clarity? (4) Is the description of the 
notice in the SUPPLEMENTARY INFORMATION section of the preamble helpful 
in understanding the proposed rule? (5) What else could we do to make 
this proposed rule easier to understand?
    Send a copy of any comments on how we could make this proposed rule 
easier to understand to: Office of Regulatory Affairs, Department of 
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You 
may e-mail your comments to this address: [email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this revised proposed 
designation of critical habitat is a significant rule in that it may 
raise novel legal and policy issues. Based on our draft economic 
analysis of the proposed revised critical habitat designation, the 
total potential post-designation efficiency impacts for 2008-2027 range 
from a lower bound of zero impact to an upper bound of $91.8 million in 
undiscounted dollars. In annualized terms, the impacts would range from 
zero to $4.59 million. At a three percent discount rate, the impacts 
would be zero to 67.7 million over 20 years. At a seven percent 
discount rate, the impacts would be zero to $47.6 million over 20 
years. Therefore, based on our draft economic analysis, we have 
determined that the proposed revised critical habitat designation for 
Astragalus magdalenae var. peirsonii will not result in an annual 
effect on the economy of $100 million or more or affect the economy in 
a material way. Due to the tight timeline for publication in the 
Federal Register, the Office of Management and Budget (OMB) has not 
formally reviewed this rule.
    Further, E.O. 12866 directs Federal agencies promulgating 
regulations to evaluate regulatory alternatives (Office of Management 
and Budget, Circular A-4, September 17, 2003). Pursuant to Circular A-
4, once it has determined that the Federal regulatory action is 
appropriate, the agency will then need to consider alternative 
regulatory approaches. Since the determination of critical habitat is a 
statutory requirement pursuant to the Act, we must then evaluate 
alternative regulatory approaches, where feasible, when promulgating a 
designation of critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat providing that the benefits of such 
exclusion outweigh the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. As such, we believe that the evaluation of the inclusion 
or exclusion of particular areas, or combination thereof, in a 
designation constitutes our regulatory alternative analysis.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act (RFA) to require Federal agencies to 
provide a statement of the factual basis for certifying that the rule 
will not have a significant economic impact on a substantial number of 
small entities. Based upon our draft economic analysis of the proposed 
designation, we provide our analysis for determining whether the 
proposed rule would result in a significant economic impact on a 
substantial number of small entities. Based on comments received, this 
determination is subject to revision as part of the final rulemaking.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term significant economic impact is meant to apply to a 
typical small business firm's business operations.

[[Page 41273]]

    To determine if this proposed designation of critical habitat for 
Astragalus magdalenae var. peirsonii would affect a substantial number 
of small entities, we considered the number of small entities affected 
within particular types of economic activities (e.g., OHV recreation). 
We considered each industry or category individually to determine if 
certification is appropriate. In estimating the numbers of small 
entities potentially affected, we also considered whether their 
activities have any Federal involvement; some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
the designation of critical habitat. Designation of critical habitat 
only affects activities conducted, funded, permitted, or authorized by 
Federal agencies; non-Federal activities are not affected by the 
designation. Typically, when proposed critical habitat designations are 
made final, Federal agencies must consult with us if their activities 
may affect that designated critical habitat. Consultations to avoid the 
destruction or adverse modification of critical habitat would be 
incorporated into the existing consultation process.
    In our economic analysis of this proposed designation, we evaluated 
the potential economic effects on small business entities resulting 
from conservation actions related to proposed designation of critical 
habitat for Astragalus magdalenae var. peirsonii. In our analysis of 
impacts to small entities (appendix A of draft economic analysis, we 
estimated that a total of up to 827 small entities in OHV-related 
sectors could be impacted by critical habitat designation, with 398 of 
those businesses in Imperial County and 429 in Yuma County. Exhibit A-4 
of our Draft Economic Analysis (on page A-8) presents an estimated 
``per business impact to small entities.'' In Imperial County, the 
average impact per small entity is estimated to be $44,300, which is 
3.22% of the estimated average per business annual sales of $1,370,000. 
In Yuma County the average impact per small entity is estimated to be 
$7,400, which is 0.51% of the estimated average per business annual 
sales of $1,440,000. The composite average for both Counties is 
estimated to be $25,400 per small entity, which is 1.78% of the 
estimated average per business annual sales of $1,410,000. Although a 
number of small entities will be affected by the designation, we do not 
believe the economic impact will be significant. Therefore, we certify 
that this proposed regulation will not result in a significant economic 
impact on a substantial number of small business entities. Please refer 
to our draft economic analysis of this designation for a more detailed 
discussion of potential economic impacts.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211; Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use) on regulations that significantly affect 
energy supply, distribution, and use. Executive Order 13211 requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. Energy-related impacts associated with the proposed A. 
m. var. peirsonii critical habitat are not expected. As noted by BLM, 
the likelihood of any energy-related activity occurring within the 
proposed critical habitat is minimal for a number of reasons. First, 
utility corridors exist outside of the proposed critical habitat area. 
Second, areas of the ISDRA likely to experience development are not 
included in the proposed designation. Third, the construction and 
maintenance of projects (such as utility lines) away from current 
roads, canals, and railways and through the central, more remote 
portions of the dunes is likely to be economically infeasible. Thus, 
this proposed designation is not expected to significantly affect 
energy supplies, distribution, or use. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 
required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement. ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments, because the majority of the lands (98 
percent) involved in the proposed designation are federally owned. As 
such, Small Government Agency Plan is not required. However, we will, 
further evaluate this issue as we conduct our economic analysis and 
review and revise this assessment as warranted.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we

[[Page 41274]]

have analyzed the potential takings implications of designating 
critical habitat for the Astragalus magdalenae var. peirsonii in a 
takings implications assessment. The takings implications assessment 
concludes that this designation of critical habitat for A. m. var. 
peirsonii does not pose significant takings implications. However, we 
will, further evaluate this issue as we conduct our economic analysis 
and review and revise this assessment as warranted.

Federalism

    In accordance with Executive Order 13132 (Federalism), the rule 
does not have significant Federalism effects. A Federalism assessment 
is not required. In keeping with Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of, this proposed critical habitat designation 
with appropriate State resource agencies in California. The majority of 
the lands (98 percent) involved in the proposed designation are 
federally owned and, therefore, the proposed designation has little 
incremental impact on State and local governments and their activities. 
The designation may have some benefit to these governments in that the 
areas that contain the features essential to the conservation of the 
species are more clearly defined, and the primary constituent elements 
of the habitat necessary to the conservation of the species are 
specifically identified. While making this definition and 
identification does not alter where and what federally sponsored 
activities may occur, it may assist these local governments in long-
range planning (rather than waiting for case-by-case section 7 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have proposed designating 
critical habitat in accordance with the provisions of the Endangered 
Species Act. This proposed rule uses standard property descriptions and 
identifies the primary constituent elements within the designated areas 
to assist the public in understanding the habitat needs of Astragalus 
magdalenae var. peirsonii.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. This rule 
will not impose recordkeeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations. An agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 116 S. Ct. 698 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no Tribal lands occupied at the time of listing that contain 
the features essential for the conservation and no Tribal lands that 
are unoccupied areas that are essential for the conservation of 
Astragalus magdalenae var. peirsonii. Therefore, designation of 
critical habitat for A. m. var. peirsonii has not been designated on 
Tribal lands.

References Cited

    A complete list of all references cited in this rulemaking is 
available for downloading from the Internet at http://www.fws.gov/carlsbad/ or by contacting the Carlsbad Fish and Wildlife Office 
directly (see ADDRESSES section).

Author(s)

    The primary authors of this package are Tannika Engelhard and Lloyd 
B. McKinney of the Carlsbad Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. In Sec.  17.96 (h), revise the entry for ``Fabaceae: Astragalus 
magdalenae var. peirsonii (Peirson's milk-vetch)'' under ``FLOWERING 
PLANTS'' to read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *
    Family Fabaceae: Astragalus magdalenae var. peirsonii (Peirson's 
milk-vetch)
    (1) Critical habitat units are depicted for this species are found 
in Imperial County, California, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Astragalus magdalenae var. peirsonii are the habitat components that 
provide:
    (i) West and/or northwest-facing sides of bowls, swales, and slopes 
consisting of Rositas fine sands within intact, active sand dune 
systems (defined as sand areas that are subject to sand-moving winds) 
in the existing range of the species that provide space needed for 
individual and population growth, including sites for germination, 
reproduction, seed dispersal, seed bank, and pollination;
    (ii) The associated co-adapted psammophytic scrub plant community 
characterized by Croton wigginsii, Eriogonum deserticola, Helianthus 
niveus ssp. tephrodes, Palafoxia arida var. gigantean, Pholisma 
sonorae, Tiquilia plicata, Petalonyx thurberi, and Panicum urvilleanum 
that provides habitat for insect pollinators, particularly the white-
faced digger bee (Habropoda pallida), required for reproduction; and
    (iii) Areas within intact, active sand dune systems between 
occupied bowls, swales, and slopes that allow for pollinator movement 
and wind dispersal of fruit and seeds.
    (3) Critical habitat does not include manmade structures, such as 
buildings, aqueducts, airports, roads, and the land on which such 
structures are located existing on the effective date of this rule

[[Page 41275]]

and not containing one or more of the primary constituent elements.
    (4) Critical habitat map units. Data layers defining map units were 
created using USGS 1:24,000 quadrangles.
    (5) Note: Index map (Map 1) follows:

BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TP27JY07.000

BILLING CODE 4310-55-C

[[Page 41276]]

    (6) Unit 1: Imperial County, California.
    (i) Subunit 1A, Mammoth Wash, Imperial County, California. From 
USGS 1:24,000 quadrangles Amos and Tortuga, lands bounded by the 
following UTM NAD83 coordinates (E, N): 657000, 3668000; 657300, 
3668000; 657300, 3667900; 657400, 3667900; 657400, 3667800; 657500, 
3667800; 657500, 3667700; 657600, 3667700; 657600, 3667400; 657800, 
3667400; 657800, 3667200; 657900, 3667200; 657900, 3667100; 658000, 
3667100; 658000, 3666900; 658100, 3666900; 658100, 3666700; 658200, 
3666700; 658200, 3666500; 658100, 3666500; 658100, 3666400; 658200, 
3666400; 658200, 3666300; 658300, 3666300; 658300, 3666200; 658400, 
3666200; 658400, 3665900; 657900, 3665900; 657900, 3666000; 657700, 
3666000; 657700, 3666100; 657600, 3666100; 657600, 3666200; 657400, 
3666200; 657400, 3666500; 657300, 3666500; 657300, 3666600; 657100, 
3666600; 657100, 3667000; 657000, 3667000; 657000, 3667200; 656900, 
3667200; 656900, 3667400; 656800, 3667400; 656800, 3667500; 656700, 
3667500; 656700, 3667700; 656800, 3667700; 656800, 3667800; 657000, 
3667800; thence returning to 657000, 3668000.
    (ii) Subunit 1B, Mammoth Wash, Imperial County, California. From 
USGS 1:24,000 quadrangle Amos, lands bounded by the following UTM NAD83 
coordinates (E, N): 658700, 3665900; 659100, 3665900; 659100, 3665800; 
659200, 3665800; 659200, 3665500; 659100, 3665500; 659100, 3665400; 
659300, 3665400; 659300, 3665300; 659600, 3665300; 659600, 3665200; 
659700, 3665200; 659700, 3665100; 659800, 3665100; 659800, 3665000; 
659700, 3665000; 659700, 3664800; 659600, 3664800; 659600, 3664600; 
659500, 3664600; 659500, 3664500; 659800, 3664500; 659800, 3664600; 
659900, 3664600; 659900, 3664800; 660300, 3664800; 660300, 3664300; 
660200, 3664300; 660200, 3664200; 660300, 3664200; 660300, 3664100; 
660600, 3664100; 660600, 3663700; 660700, 3663700; 660700, 3663600; 
660900, 3663600; 660900, 3663500; 661000, 3663500; 661000, 3663400; 
661200, 3663400; 661200, 3663000; 661300, 3663000; 661300, 3662900; 
661600, 3662900; 661600, 3662800; 661700, 3662800; 661700, 3662600; 
662000, 3662600; 662000, 3662500; 662600, 3662500; 662600, 3662300; 
662500, 3662300; 662500, 3662200; 662300, 3662200; 662300, 3662000; 
662600, 3662000; 662600, 3661900; 663000, 3661900; 663000, 3661700; 
663100, 3661700; 663100, 3661500; 663200, 3661500; 663200, 3661200; 
663100, 3661200; 663100, 3661100; 663000, 3661100; 663000, 3661000; 
662700, 3661000; 662700, 3660800; 662500, 3660800; 662500, 3660900; 
662400, 3660900; 662400, 3661100; 661900, 3661100; 661900, 3661300; 
661800, 3661300; 661800, 3661600; 661700, 3661600; 661700, 3662100; 
661300, 3662100; 661300, 3662000; 661100, 3662000; 661100, 3662400; 
661000, 3662400; 661000, 3662300; 660700, 3662300; 660700, 3662500; 
660500, 3662500; 660500, 3662600; 660400, 3662600; 660400, 3662700; 
660300, 3662700; 660300, 3663100; 660200, 3663100; 660200, 3663400; 
659900, 3663400; 659900, 3663500; 659800, 3663500; 659800, 3663800; 
659600, 3663800; 659600, 3664200; 659500, 3664200; 659500, 3664300; 
659400, 3664300; 659400, 3664100; 659100, 3664100; 659100, 3664200; 
659000, 3664200; 659000, 3664500; 658900, 3664500; 658900, 3664800; 
658800, 3664800; 658800, 3664700; 658600, 3664700; 658600, 3664800; 
658500, 3664800; 658500, 3665200; 658300, 3665200; 658300, 3665400; 
658000, 3665400; 658000, 3665500; 657900, 3665500; 657900, 3665700; 
658600, 3665700; 658600, 3665800; 658700, 3665800; thence returning to 
658700, 3665900.
    (iii) Subunit 1C, North Algodones Wilderness Area, Imperial County, 
California. From USGS 1:24,000 quadrangles Acolita and Amos, lands 
bounded by the following UTM NAD83 coordinates (E, N): 663400, 3661100; 
663700, 3661100; 663700, 3661000; 663800, 3661000; 663800, 3660900; 
664000, 3660900; 664000, 3660800; 664100, 3660800; 664100, 3660700; 
664200, 3660700; 664200, 3660600; 664400, 3660600; 664400, 3660300; 
664500, 3660300; 664500, 3659900; 664600, 3659900; 664600, 3659800; 
664700, 3659800; 664700, 3659700; 664800, 3659700; 664800, 3659600; 
665000, 3659600; 665000, 3659300; 665200, 3659300; 665200, 3659200; 
665300, 3659200; 665300, 3659100; 665400, 3659100; 665400, 3658900; 
665600, 3658900; 665600, 3658400; 665800, 3658400; 665800, 3658300; 
665900, 3658300; 665900, 3658100; 666200, 3658100; 666200, 3657900; 
666100, 3657900; 666100, 3657800; 666000, 3657800; 666000, 3657900; 
665400, 3657900; 665400, 3658000; 665300, 3658000; 665300, 3658200; 
665200, 3658200; 665200, 3658300; 665000, 3658300; 665000, 3658700; 
664800, 3658700; 664800, 3658900; 664700, 3658900; 664700, 3659000; 
664300, 3659000; 664300, 3659200; 664100, 3659200; 664100, 3659300; 
663900, 3659300; 663900, 3659400; 663800, 3659400; 663800, 3659500; 
663700, 3659500; 663700, 3659800; 663600, 3659800; 663600, 3660000; 
663500, 3660000; 663500, 3660100; 663400, 3660100; 663400, 3660200; 
663300, 3660200; 663300, 3660300; 663100, 3660300; 663100, 3660500; 
663000, 3660500; 663000, 3660800; 663100, 3660800; 663100, 3660900; 
663400, 3660900; thence returning to 663400, 3661100.
    (iv) Subunit 1D, North Algodones Wilderness Area, Imperial County, 
California. From USGS 1:24,000 quadrangles Acolita and Glamis NW, lands 
bounded by the following UTM NAD83 coordinates (E, N): 666500, 3657900; 
666700, 3657900; 666700, 3657700; 666800, 3657700; 666800, 3657600; 
667100, 3657600; 667100, 3657300; 667300, 3657300; 667300, 3657000; 
667600, 3657000; 667600, 3656600; 668100, 3656600; 668100, 3656400; 
668300, 3656400; 668300, 3656000; 668700, 3656000; 668700, 3655900; 
668800, 3655900; 668800, 3655800; 669500, 3655800; 669500, 3655700; 
669600, 3655700; 669600, 3655800; 669800, 3655800; 669800, 3655500; 
669600, 3655500; 669600, 3655400; 669400, 3655400; 669400, 3655300; 
669300, 3655300; 669300, 3655100; 669600, 3655100; 669600, 3655000; 
669500, 3655000; 669500, 3654900; 669700, 3654900; 669700, 3654700; 
669900, 3654700; 669900, 3654500; 670100, 3654500; 670100, 3654300; 
670200, 3654300; 670200, 3654400; 670500, 3654400; 670500, 3654300; 
670600, 3654300; 670600, 3653900; 670900, 3653900; 670900, 3653800; 
671200, 3653800; 671200, 3653400; 671300, 3653400; 671300, 3653300; 
671500, 3653300; 671500, 3653600; 671600, 3653600; 671600, 3653700; 
671800, 3653700; 671800, 3653400; 671900, 3653400; 671900, 3653300; 
672100, 3653300; 672100, 3653200; 672200, 3653200; 672200, 3653000; 
672600, 3653000; 672600, 3652600; 672700, 3652600; 672700, 3652700; 
673000, 3652700; 673000, 3652200; 673100, 3652200; 673100, 3652100; 
673700, 3652100; 673700, 3651800; 673400, 3651800; 673400, 3651700; 
673300, 3651700; 673300, 3651600; 673400, 3651600; 673400, 3651500; 
673300, 3651500; 673300, 3651400; 673100, 3651400; 673100, 3651300; 
672900, 3651300; 672900, 3651000; 672700, 3651000; 672700, 3650800; 
672600, 3650800; 672600, 3650700; 672400, 3650700; 672400, 3650800; 
672300, 3650800; 672300, 3651300; 672200, 3651300; 672200, 3651400; 
671600, 3651400; 671600, 3651500; 671500, 3651500; 671500, 3652000; 
671400, 3652000; 671400,

[[Page 41277]]

3651900; 671200, 3651900; 671200, 3652200; 671300, 3652200; 671300, 
3652400; 671500, 3652400; 671500, 3652600; 671400, 3652600; 671400, 
3652900; 671100, 3652900; 671100, 3653100; 670900, 3653100; 670900, 
3653000; 670700, 3653000; 670700, 3653100; 670600, 3653100; 670600, 
3653200; 670400, 3653200; 670400, 3653300; 670300, 3653300; 670300, 
3653500; 670100, 3653500; 670100, 3653700; 669800, 3653700; 669800, 
3653900; 669500, 3653900; 669500, 3653800; 669300, 3653800; 669300, 
3653900; 669200, 3653900; 669200, 3654000; 669100, 3654000; 669100, 
3654200; 669400, 3654200; 669400, 3654100; 669800, 3654100; 669800, 
3654400; 669600, 3654400; 669600, 3654500; 669500, 3654500; 669500, 
3654700; 669400, 3654700; 669400, 3654800; 669200, 3654800; 669200, 
3654900; 669100, 3654900; 669100, 3655000; 668900, 3655000; 668900, 
3655100; 668700, 3655100; 668700, 3655300; 668600, 3655300; 668600, 
3655400; 668500, 3655400; 668500, 3655300; 668300, 3655300; 668300, 
3655400; 668100, 3655400; 668100, 3655500; 668000, 3655500; 668000, 
3655600; 667900, 3655600; 667900, 3656100; 667700, 3656100; 667700, 
3656000; 667400, 3656000; 667400, 3656100; 667000, 3656100; 667000, 
3656300; 666600, 3656300; 666600, 3656400; 666500, 3656400; 666500, 
3656800; 666300, 3656800; 666300, 3657000; 666000, 3657000; 666000, 
3657100; 665900, 3657100; 665900, 3657400; 666200, 3657400; 666200, 
3657600; 666300, 3657600; 666300, 3657800; 666500, 3657800; thence 
returning to 666500, 3657900.
    (v) Note: Map of Unit 1 (Map 2) follows:

BILLING CODE 4310-55-P

[[Page 41278]]

[GRAPHIC] [TIFF OMITTED] TP27JY07.001

BILLING CODE 4310-55-C

[[Page 41279]]

    (7) Unit 2: Imperial County, California.
    (i) Subunit 2A, Gecko, Imperial County, California. From USGS 
1:24,000 quadrangles Glamis and Glamis NW, lands bounded by the 
following UTM NAD83 coordinates (E, N): 674500, 3648700; 674700, 
3648700; 674700, 3648600; 674800, 3648600; 674800, 3648500; 674700, 
3648500; 674700, 3648300; 674800, 3648300; 674800, 3648100; 675000, 
3648100; 675000, 3647900; 674900, 3647900; 674900, 3647800; 675100, 
3647800; 675100, 3647600; 675200, 3647600; 675200, 3647400; 675800, 
3647400; 675800, 3647200; 676100, 3647200; 676100, 3647100; 676500, 
3647100; 676500, 3647300; 676700, 3647300; 676700, 3647400; 676400, 
3647400; 676400, 3647700; 676500, 3647700; 676500, 3647800; 676700, 
3647800; 676700, 3647700; 676800, 3647700; 676800, 3647600; 676700, 
3647600; 676700, 3647500; 677200, 3647500; 677200, 3647300; 677400, 
3647300; 677400, 3647400; 677600, 3647400; 677600, 3647500; 677700, 
3647500; 677700, 3647600; 677800, 3647600; 677800, 3647700; 678000, 
3647700; 678000, 3647400; 677900, 3647400; 677900, 3647200; 677800, 
3647200; 677800, 3647000; 677900, 3647000; 677900, 3647100; 678300, 
3647100; 678300, 3646800; 678200, 3646800; 678200, 3646700; 677900, 
3646700; 677900, 3646400; 677600, 3646400; 677600, 3646200; 677900, 
3646200; 677900, 3646300; 678100, 3646300; 678100, 3645900; 678400, 
3645900; 678400, 3646100; 678600, 3646100; 678600, 3646300; 678900, 
3646300; 678900, 3646100; 678700, 3646100; 678700, 3645900; 678800, 
3645900; 678800, 3645700; 678700, 3645700; 678700, 3645600; 678600, 
3645600; 678600, 3645500; 678700, 3645500; 678700, 3645300; 678900, 
3645300; 678900, 3645400; 678800, 3645400; 678800, 3645600; 679000, 
3645600; 679000, 3645700; 678900, 3645700; 678900, 3646000; 679100, 
3646000; 679100, 3646100; 679000, 3646100; 679000, 3646200; 679100, 
3646200; 679100, 3646300; 679400, 3646300; 679400, 3646500; 679600, 
3646500; 679600, 3646300; 679700, 3646300; 679700, 3646100; 679600, 
3646100; 679600, 3646000; 679500, 3646000; 679500, 3645900; 679300, 
3645900; 679300, 3645800; 679400, 3645800; 679400, 3645600; 679100, 
3645600; 679100, 3645300; 679200, 3645300; 679200, 3645200; 679400, 
3645200; 679400, 3645000; 679300, 3645000; 679300, 3644400; 679100, 
3644400; 679100, 3644200; 679300, 3644200; 679300, 3643900; 679500, 
3643900; 679500, 3643700; 679400, 3643700; 679200, 3643700; 679200, 
3643900; 679100, 3643900; 679100, 3643800; 679000, 3643800; 679000, 
3643900; 678900, 3643900; 678900, 3643800; 678800, 3643800; 678800, 
3643600; 678900, 3643600; 678900, 3643300; 678800, 3643300; 678800, 
3643100; 678600, 3643100; 678600, 3643200; 678400, 3643200; 678400, 
3643300; 678600, 3643300; 678600, 3643600; 678400, 3643600; 678400, 
3643500; 678300, 3643500; 678300, 3643600; 678200, 3643600; 678200, 
3643400; 677900, 3643400; 677900, 3643200; 677800, 3643200; 677800, 
3643100; 677500, 3643100; 677500, 3643400; 677700, 3643400; 677700, 
3643500; 677900, 3643500; 677900, 3643700; 677200, 3643700; 677200, 
3644000; 677300, 3644000; 677300, 3644300; 677100, 3644300; 677100, 
3644200; 676800, 3644200; 676800, 3644500; 676900, 3644500; 676900, 
3644800; 676800, 3644800; 676800, 3645000; 676600, 3645000; 676600, 
3644900; 676500, 3644900; 676500, 3644800; 676400, 3644800; 676400, 
3644900; 676300, 3644900; 676300, 3645100; 676500, 3645100; 676500, 
3645200; 676600, 3645200; 676600, 3645300; 677000, 3645300; 677000, 
3645500; 676700, 3645500; 676700, 3645400; 676500, 3645400; 676500, 
3645600; 676400, 3645600; 676400, 3645300; 676300, 3645300; 676300, 
3645200; 676100, 3645200; 676100, 3645300; 676000, 3645300; 676000, 
3645500; 676200, 3645500; 676200, 3645600; 676300, 3645600; 676300, 
3645800; 676200, 3645800; 676200, 3645900; 676000, 3645900; 676000, 
3645800; 675800, 3645800; 675800, 3645900; 675600, 3645900; 675600, 
3645800; 675400, 3645800; 675400, 3645900; 675300, 3645900; 675300, 
3646500; 675700, 3646500; 675700, 3646600; 675600, 3646600; 675600, 
3646800; 675500, 3646800; 675500, 3647000; 675100, 3647000; 675100, 
3647500; 674900, 3647500; 674900, 3647700; 674800, 3647700; 674800, 
3647500; 674500, 3647500; 674500, 3647700; 674300, 3647700; 674300, 
3648000; 674500, 3648000; 674500, 3648300; 674300, 3648300; 674300, 
3648400; 674200, 3648400; 674200, 3648600; 674500, 3648600; thence 
returning to 674500, 3648700.
    (ii) Subunit 2B, Gecko, Imperial County, California. From USGS 
1:24,000 quadrangle Glamis, lands bounded by the following UTM NAD83 
coordinates (E, N): 679400, 3643700; 679500, 3643700; 679700, 3643700; 
679700, 3643600; 679800, 3643600; 679800, 3643400; 679700, 3643400; 
679700, 3643300; 679800, 3643300; 679800, 3643000; 679600, 3643000; 
679600, 3642900; 679500, 3642900; 679500, 3642800; 679300, 3642800; 
679300, 3642600; 679200, 3642600; 679200, 3642400; 679600, 3642400; 
679600, 3642200; 679500, 3642200; 679500, 3642000; 679800, 3642000; 
679800, 3642200; 679900, 3642200; 679900, 3642300; 680100, 3642300; 
680100, 3642200; 680400, 3642200; 680400, 3642100; 680700, 3642100; 
680700, 3641800; 680500, 3641800; 680500, 3641900; 680300, 3641900; 
680300, 3641800; 680100, 3641800; 680100, 3641900; 680000, 3641900; 
680000, 3641800; 679800, 3641800; 679800, 3641600; 679900, 3641600; 
679900, 3641500; 680000, 3641500; 680000, 3641400; 680100, 3641400; 
680100, 3641300; 680700, 3641300; 680700, 3641400; 681000, 3641400; 
681000, 3641700; 681300, 3641700; 681300, 3641800; 681500, 3641800; 
681500, 3641600; 681900, 3641600; 681900, 3641800; 682100, 3641800; 
682100, 3641700; 682200, 3641700; 682200, 3641400; 681800, 3641400; 
681800, 3641200; 681700, 3641200; 681700, 3640800; 681900, 3640800; 
681900, 3640600; 682100, 3640600; 682100, 3640700; 682200, 3640700; 
682200, 3640800; 682400, 3640800; 682400, 3640400; 682100, 3640400; 
682100, 3640300; 681900, 3640300; 681900, 3640200; 681700, 3640200; 
681700, 3640000; 681400, 3640000; 681400, 3640100; 681200, 3640100; 
681200, 3640000; 681100, 3640000; 681100, 3639900; 681300, 3639900; 
681300, 3639700; 681000, 3639700; 681000, 3639600; 680700, 3639600; 
680700, 3639700; 680600, 3639700; 680600, 3639800; 680400, 3639800; 
680400, 3639900; 680300, 3639900; 680300, 3640500; 680400, 3640500; 
680400, 3640600; 680500, 3640600; 680500, 3640500; 680600, 3640500; 
680600, 3640300; 680500, 3640300; 680500, 3640200; 680600, 3640200; 
680600, 3640000; 680800, 3640000; 680800, 3640100; 680900, 3640100; 
680900, 3640200; 680800, 3640200; 680800, 3640500; 681200, 3640500; 
681200, 3640800; 681400, 3640800; 681400, 3641100; 681500, 3641100; 
681500, 3641500; 681400, 3641500; 681400, 3641300; 681200, 3641300; 
681200, 3640900; 680900, 3640900; 680900, 3641100; 680800, 3641100; 
680800, 3641200; 680700, 3641200; 680700, 3641100; 680400, 3641100; 
680400, 3641000; 680200, 3641000; 680200, 3641100; 680100, 3641100; 
680100, 3640900; 680300, 3640900; 680300, 3640600; 680000, 3640600; 
680000, 3640300; 679800, 3640300; 679800, 3640400; 679700, 3640400; 
679700, 3640600; 679800, 3640600; 679800,

[[Page 41280]]

3640700; 679700, 3640700; 679700, 3641100; 679400, 3641100; 679400, 
3641200; 679300, 3641200; 679300, 3641500; 679100, 3641500; 679100, 
3641400; 678900, 3641400; 678900, 3641500; 678800, 3641500; 678800, 
3641700; 678700, 3641700; 678700, 3641800; 678600, 3641800; 678600, 
3642000; 678500, 3642000; 678500, 3641800; 678200, 3641800; 678200, 
3642100; 678300, 3642100; 678300, 3642500; 678600, 3642500; 678600, 
3642800; 678700, 3642800; 678700, 3643000; 678900, 3643000; 678900, 
3643200; 679000, 3643200; 679000, 3643300; 679300, 3643300; 679300, 
3643400; 679400, 3643400; thence returning to 679400, 3643700; and 
lands bounded by 680500, 3640900; 680700, 3640900; 680700, 3640800; 
680800, 3640800; 680800, 3640600; 680500, 3640600; thence returning to 
680500, 3640900.
    (iii) Note: Map of Unit 2 (Map 3) follows:

BILLING CODE 4310-55-P

[[Page 41281]]

[GRAPHIC] [TIFF OMITTED] TP27JY07.002

BILLING CODE 4310-55-C

[[Page 41282]]

    (8) Unit 3: Imperial County, California.
    (i) Subunit 3A, AMA, Imperial County, California. From USGS 
1:24,000 quadrangles Cactus, Glamis and Glamis SE, lands bounded by the 
following UTM NAD83 coordinates (E, N): 682600, 3639800; 682900, 
3639800; 682900, 3639700; 683100, 3639700; 683100, 3639600; 683200, 
3639600; 683200, 3639400; 683400, 3639400; 683400, 3639100; 683100, 
3639100; 683100, 3639000; 683200, 3639000; 683200, 3638800; 683300, 
3638800; 683300, 3638700; 683900, 3638700; 683900, 3638600; 684100, 
3638600; 684100, 3638500; 684300, 3638500; 684300, 3638400; 684400, 
3638400; 684400, 3638100; 684100, 3638100; 684100, 3637700; 684300, 
3637700; 684300, 3637400; 684600, 3637400; 684600, 3637100; 684700, 
3637100; 684700, 3637000; 685000, 3637000; 685000, 3637100; 685300, 
3637100; 685300, 3637000; 685400, 3637000; 685400, 3636800; 685100, 
3636800; 685100, 3636400; 685200, 3636400; 685200, 3636300; 685400, 
3636300; 685400, 3636100; 685700, 3636100; 685700, 3636000; 685900, 
3636000; 685900, 3635900; 686400, 3635900; 686400, 3635700; 686700, 
3635700; 686700, 3635200; 687300, 3635200; 687300, 3635300; 687500, 
3635300; 687500, 3635400; 687600, 3635400; 687600, 3635500; 687700, 
3635500; 687700, 3635600; 687900, 3635600; 687900, 3635500; 688000, 
3635500; 688000, 3635300; 687700, 3635300; 687700, 3635000; 687600, 
3635000; 687600, 3634700; 687700, 3634700; 687700, 3634500; 687800, 
3634500; 687800, 3634300; 687900, 3634300; 687900, 3634100; 688100, 
3634100; 688100, 3634000; 688200, 3634000; 688200, 3633900; 688300, 
3633900; 688300, 3633700; 688400, 3633700; 688400, 3633600; 688500, 
3633600; 688500, 3633500; 688600, 3633500; 688600, 3633300; 688500, 
3633300; 688500, 3633200; 688400, 3633200; 688400, 3632900; 688500, 
3632900; 688500, 3632600; 688600, 3632600; 688600, 3632200; 688700, 
3632200; 688700, 3632100; 688800, 3632100; 688800, 3631900; 688900, 
3631900; 688900, 3631800; 688800, 3631800; 688800, 3631700; 688900, 
3631700; 688900, 3631500; 689500, 3631500; 689500, 3631300; 689800, 
3631300; 689800, 3631000; 689500, 3631000; 689500, 3630600; thence 
southwestward to y-coordinate 3630000 at the Management Area boundary; 
thence northwestward along the Management Area boundary to x-coordinate 
686700; thence to 686700, 3632800; 686600, 3632800; 686600, 3632900; 
686500, 3632900; 686500, 3633000; 686400, 3633000; 686400, 3633400; 
686300, 3633400; 686300, 3633500; 686200, 3633500; 686200, 3633600; 
686100, 3633600; 686100, 3633800; 685900, 3633800; 685900, 3633900; 
685800, 3633900; 685800, 3634000; 685700, 3634000; 685700, 3634200; 
685600, 3634200; 685600, 3634300; 685300, 3634300; 685300, 3634700; 
685200, 3634700; 685200, 3634800; 685000, 3634800; 685000, 3634900; 
684900, 3634900; 684900, 3635200; 684800, 3635200; 684800, 3635300; 
684700, 3635300; 684700, 3635400; 684500, 3635400; 684500, 3635500; 
684400, 3635500; 684400, 3635600; 684300, 3635600; 684300, 3635800; 
684100, 3635800; 684100, 3635900; 684000, 3635900; 684000, 3636000; 
683900, 3636000; 683900, 3636100; 683500, 3636100; 683500, 3636200; 
683400, 3636200; 683400, 3636500; 683300, 3636500; 683300, 3636600; 
683200, 3636600; 683200, 3636700; 683100, 3636700; 683100, 3636800; 
682800, 3636800; 682800, 3636900; 682700, 3636900; 682700, 3637100; 
682800, 3637100; 682800, 3637500; 682300, 3637500; 682300, 3637700; 
682000, 3637700; 682000, 3638000; 681900, 3638000; 681900, 3638500; 
681600, 3638500; 681600, 3638800; 681800, 3638800; 681800, 3639000; 
681900, 3639000; 681900, 3639100; 682000, 3639100; 682000, 3639200; 
682100, 3639200; 682100, 3639300; 682500, 3639300; 682500, 3639500; 
682400, 3639500; 682400, 3639700; 682600, 3639700; thence returning to 
682600, 3639800.
    (ii) Subunit 3B, AMA/Ogilby, Imperial County, California. From USGS 
1:24,000 quadrangle Cactus, lands bounded by the following UTM NAD83 
coordinates (E, N): 691900, 3631300; 692300, 3631300; 692300, 3630800; 
691900, 3630800; 691900, 3630700; 691800, 3630700; 691800, 3630600; 
691500, 3630600; 691500, 3630500; 691200, 3630500; 691200, 3630100; 
691100, 3630100; 691100, 3629900; 691200, 3629900; 691200, 3629600; 
691100, 3629600; 691100, 3629400; 691400, 3629400; 691400, 3629700; 
691600, 3629700; 691600, 3629800; 691700, 3629800; 691700, 3629700; 
691800, 3629700; 691800, 3629500; 691700, 3629500; 691700, 3629400; 
691500, 3629400; 691500, 3629300; 691600, 3629300; 691600, 3628700; 
691700, 3628700; 691700, 3628600; thence southwestward to the 
Management Area boundary at y-coordinate 3627650; thence northwestward 
along the Management Area boundary to y-coordinate 3630000; thence 
northeastward to 689500, 3630600; thence to 689600, 3630600; 689600, 
3630500; 689700, 3630500; 689700, 3630400; 690000, 3630400; 690000, 
3630300; 690200, 3630300; 690200, 3630200; 690700, 3630200; 690700, 
3630100; 690900, 3630100; 690900, 3630400; 691000, 3630400; 691000, 
3630700; 691200, 3630700; 691200, 3630800; 691300, 3630800; 691300, 
3630900; 691500, 3630900; 691500, 3631000; 691600, 3631000; 691600, 
3631100; 691800, 3631100; 691800, 3631200; 691900, 3631200; thence 
returning to 691900, 3631300.
    (iii) Subunit 3C, Ogilby, Imperial County, California. From USGS 
1:24,000 quadrangle Cactus and Grays Well, lands bounded by the 
following UTM NAD83 coordinates (E, N): 693100, 3629300; 693400, 
3629300; 693400, 3629100; 693500, 3629100; 693500, 3628700; 693300, 
3628700; 693300, 3628600; 693200, 3628600; 693200, 3628500; 692400, 
3628500; 692400, 3628200; 692300, 3628200; 692300, 3628100; 691900, 
3628100; 691900, 3627600; 692300, 3627600; 692300, 3627500; 692800, 
3627500; 692800, 3627200; 692700, 3627200; 692700, 3627100; 692500, 
3627100; 692500, 3627000; 692600, 3627000; 692600, 3626700; 692700, 
3626700; 692700, 3626600; 693800, 3626600; 693800, 3626500; 693900, 
3626500; 693900, 3626300; 693800, 3626300; 693800, 3625700; 694400, 
3625700; 694400, 3625600; 695000, 3625600; 695000, 3625300; 694700, 
3625300; 694700, 3625200; 694400, 3625200; 694400, 3625100; 694300, 
3625100; 694300, 3625000; 694000, 3625000; 694000, 3625100; 693900, 
3625100; 693900, 3625200; 693700, 3625200; 693700, 3624500; thence 
westward to the Management Area boundary at y-coordinate 3624500; 
thence northwestward along the Management Area boundary at x-coordinate 
693000; thence to 693000, 3625400; 693100, 3625400; 693100, 3625600; 
692900, 3625600; 692900, 3625700; 692800, 3625700; 692800, 3625800; 
692700, 3625800; 692700, 3626100; 692500, 3626100; 692500, 3626300; 
692100, 3626300; 692100, 3626800; thence westward to the Management 
Area boundary at y-coordinate 3626800; thence northwestward to y-
coordinate 3627650; thence to 691700, 3628600; 692700, 3628600; 692700, 
3628700; 692800, 3628700; 692800, 3628800; 692900, 3628800; 692900, 
3628900; 693000, 3628900; 693000, 3629000; 693100, 3629000; thence 
returning to 693100, 3629300; and lands bounded by 696500, 3625500; 
696800, 3625500; 696800, 3625300; 697000, 3625300; 697000, 3625000; 
696900, 3625000;

[[Page 41283]]

696900, 3624800; 696500, 3624800; 696500, 3624600; 696300, 3624600; 
696300, 3624400; 696100, 3624400; 696100, 3624500; 695800, 3624500; 
695800, 3624200; 695700, 3624200; 695700, 3624000; 695600, 3624000; 
695600, 3623900; 695400, 3623900; 695400, 3624000; 695200, 3624000; 
695200, 3623900; 695000, 3623900; 695000, 3623800; 694600, 3623800; 
694600, 3624300; 694800, 3624300; 694800, 3624400; 694900, 3624400; 
694900, 3624500; 695300, 3624500; 695300, 3624400; 695400, 3624400; 
695400, 3624600; 695600, 3624600; 695600, 3624700; 695700, 3624700; 
695700, 3624800; 696100, 3624800; 696100, 3625000; 696300, 3625000; 
696300, 3625100; 696400, 3625100; 696400, 3625400; 696500, 3625400; 
thence returning to 696500, 3625500.
    Subunit 3C, Ogilby, Imperial County, California. From USGS 1:24,000 
quadrangle Cactus and Grays Well, lands bounded by the following UTM 
NAD83 coordinates (E, N): 693100, 3629300; 693400, 3629300; 693400, 
3629100; 693500, 3629100; 693500, 3628700; 693300, 3628700; 693300, 
3628600; 693200, 3628600; 693200, 3628500; 692400, 3628500; 692400, 
3628200; 692300, 3628200; 692300, 3628100; 691900, 3628100; 691900, 
3627600; 692300, 3627600; 692300, 3627500; 692800, 3627500; 692800, 
3627200; 692700, 3627200; 692700, 3627100; 692500, 3627100; 692500, 
3627000; 692600, 3627000; 692600, 3626700; 692700, 3626700; 692700, 
3626600; 693800, 3626600; 693800, 3626500; 693900, 3626500; 693900, 
3626300; 693800, 3626300; 693800, 3625700; 694400, 3625700; 694400, 
3625600; 695000, 3625600; 695000, 3625300; 694700, 3625300; 694700, 
3625200; 694400, 3625200; 694400, 3625100; 694300, 3625100; 694300, 
3625000; 694000, 3625000; 694000, 3625100; 693900, 3625100; 693900, 
3625200; 693700, 3625200; 693700, 3624500; 693400, 3624500; 693400, 
3624700; 693300, 3624700; 693300, 3624800; 693200, 3624800; 693200, 
3624900; 693100, 3624900; 693100, 3625000; 693000, 3625000; 693000, 
3625400; 693100, 3625400; 693100, 3625600; 692900, 3625600; 692900, 
3625700; 692800, 3625700; 692800, 3625800; 692700, 3625800; 692700, 
3626100; 692500, 3626100; 692500, 3626300; 692100, 3626300; 692100, 
3626800; 691400, 3626800; 691400, 3627000; 691300, 3627000; 691300, 
3627100; 691200, 3627100; 691200, 3627400; 690900, 3627400; 690900, 
3627500; 690800, 3627501; 691700, 3628600; 692700, 3628600; 692700, 
3628700; 692800, 3628700; 692800, 3628800; 692900, 3628800; 692900, 
3628900; 693000, 3628900; 693000, 3629000; 693100, 3629000; thence 
returning to 693100, 3629300; and lands bounded by 696500, 3625500; 
696800, 3625500; 696800, 3625300; 697000, 3625300; 697000, 3625000; 
696900, 3625000; 696900, 3624800; 696500, 3624800; 696500, 3624600; 
696300, 3624600; 696300, 3624400; 696100, 3624400; 696100, 3624500; 
695800, 3624500; 695800, 3624200; 695700, 3624200; 695700, 3624000; 
695600, 3624000; 695600, 3623900; 695400, 3623900; 695400, 3624000; 
695200, 3624000; 695200, 3623900; 695000, 3623900; 695000, 3623800; 
694600, 3623800; 694600, 3624300; 694800, 3624300; 694800, 3624400; 
694900, 3624400; 694900, 3624500; 695300, 3624500; 695300, 3624400; 
695400, 3624400; 695400, 3624600; 695600, 3624600; 695600, 3624700; 
695700, 3624700; 695700, 3624800; 696100, 3624800; 696100, 3625000; 
696300, 3625000; 696300, 3625100; 696400, 3625100; 696400, 3625400; 
696500, 3625400; thence returning to 696500, 3625500.
    (iv) Note: The map depicting Unit 3 is found at paragraph (9)(ii) 
of this entry.
    (9) Unit 4: Buttercup, Imperial County, California.
    (i) From USGS 1:24,000 quadrangle Grays Well, lands bounded by the 
following UTM NAD83 coordinates (E, N): 697900, 3622100; 698300, 
3622100; 698300, 3621900; 698200, 3621900; 698200, 3621700; 698300, 
3621700; 698300, 3621600; 698500, 3621600; 698500, 3621500; 698600, 
3621500; 698600, 3621200; 698500, 3621200; 698500, 3621100; 698400, 
3621100; 698400, 3621000; 698300, 3621000; 698300, 3620970; 697900, 
3620925; 697900, 3621000; 697800, 3621000; 697800, 3621100; 697700, 
3621100; 697700, 3621300; 697600, 3621300; 697600, 3621400; 697500, 
3621400; 697500, 3621500; 697400, 3621500; 697400, 3621800; 697600, 
3621800; 697600, 3621900; 697900, 3621900; thence returning to 697900, 
3622100.
    (ii) Note: Map of Units 3 and 4 (Map 4) follows:

BILLING CODE 4310-55-P

[[Page 41284]]

[GRAPHIC] [TIFF OMITTED] TP27JY07.003

* * * * *

    Dated: July 19, 2007.
Todd Willens,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 07-3674 Filed 7-26-07; 8:45 am]
BILLING CODE 4310-55-C